Petition for Writ of Certiorari — Alonso v. Grand National Bank

~ Supreme Court, U.S,

|| PILED

85-1916 | MAY 16 1908

JOSEPH F. SPANIOL, JR,

NO. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

Andres Alonso, Jr.,

Petitioner,

Vv.

Grand National Bank,

Arrow Precision Products, Inc.,

and Academy Manufacturing,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Law Offices of

Andres Alonso, Jr.

3660 Wilshire Boulevard

Suite 1150

Los Angeles, CA 90010

(213) 7338-7000

Andres Alonso, Jr.

In Propria Persona

R\\

QUESTIONS PRESENTED

Petitioner, an attorney, advised his

clients that a subpoena for their depo-

sition in a bankruptcy proceeding was

invalid. The bankruptcy judge, displeased

with the advise, held petitioner in con-

tempt and ordered him to "produce" his

clients, who were not present, for the

deposition. Under the threat of contempt,

petitioner acquiesced to a deposition date,

but his clients, who were never properly

served with notice, did not appear on that

date. The District Court found petitioner

guilty of criminal and civil contempt for

not producing his clients, and, in addition

to civil penalties, sentenced petitioner

to prison and placed him on probation. The

clients later submitted to the deposition

and were exonerated of any contempt charges.

Inexplicably, the Ninth Circuit Court of

i.

Appeals affirmed petitioner's criminal and

civil Contempt convictions on the sole

ground that he purportedly "represented to

a bankruptcy court that he would produce

his clients for deposition, when he had no

intention to do so."

The case presents novel and important

issues regarding statutory and constitu-

tional limits on the contempt power of

federal courts and the right of any court

to conscript an attorney to carry out court

orders against his own clients:

1. Is an attorney denied due process of

law when he is deprived of his own liberty

and property for failing to do what an

attorney canncet physically, legally or

ethically do -- "produce" his clients for

deposition?

2. Does an attorney "obstruct the

administration of justice" within the

meaning of the federal contempt statute,

ii.

| | my

Title 18, U.S.C., Section 401, by acquiesc-

ing, (after being held in contempt), toa

depositon date for his clients who, as it

later develops, are not, and never were,

legally bound to appear at that deposition?

3. In the fair administration of federal

justice, should an attorney ever be

punished as a criminal for honestly and

correctly advising his clients of their

legal rights?

iii.

PARTIES TO THE PROCEEDINGS

IN LOWER COURTS

Debtor:

Akros Installations, Inc.,

a California corporation

Creditors and Appellees:

Grand National Bank,

Arrow Precision Products, Inc.,

and Academy Manufacturing

Appellants:

Fred Alexander, Linda Alexander,

and Andres Alonso, Jr.

iv.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED -

PARTIES TO THE PROCEEDINGS

IN LOWER COURTS iv.

TABLE OF AUTHORITIES ix.

OPINIONS BELOW A

JURISDICTION ms

CONSTITUTIONAL, STATUTORY,

AND RULE PROVISIONS INVOLVED 2.

STATEMENT OF THE CASE Ss

A. Background. 4.

B. The Bankruptcy Court's

Contempt Finding Against

Petitioner for Advising

his Clients of their

Rights. S.

C. The District Court's

Contempt Finding against

Petitioner for his

Failure to "Produce"

his Clients. ) i A

D. The Punishment of

Petitioner for Criminal

and Civil Contempt. a3.

E. The Appeal. 16.

Table of Contents - Continued:

REASONS FOR GRANTING

THE PETITICN

I

Il

THIS CASE PRESENTS IMPORTANT

AND NOVEL ISSUES REGARDING A

FEDERAL COURT'S AUTHORITY TO

PUNISH AN ATTORNEY FOR

CRIMINAL AND CIVIL CONTEMPT

FOR REFUSING TO VIOLATE HIS

LEGAL AND ETHICAL OBLIGATIONS

TO HIS CLIENTS.

THE DECISION OF THE COURT OF

APPEALS CONFLICTS WITH THE

EXPRESS TERMS OF THE CONTEMPT

STATUTE, TITLE 18, U.S.C.,

SECTION 401, AND DECISIONS

OF THIS COURT AND OTHER

COURTS ON THE PERMISSIBLE

SCOPE OF THE CONTEMPT

POWER.

A. The Contempt Statute is

Expressly and Narrowly

Drawn.

B. An Attorney cannot be

Required to "Produce"

his Clients for a

Deposition.

1. Actual Impossibility.

2. Ethical Impossibility.

vi.

Page

18.

18.

20.

20.

22.

22.

24.

Table of Contents - Continued:

C. Petitioner did not Promise

to “Produce” his Clients;

and even if he did, Breach

of such a Promise is not

a Contempt of Court.

1. There was no Promise.

2. Breach of Promise does

not Obstruct Justice.

CONCLUSION

APPENDIX A

ORDER, UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

affirms and reverses District

Court's findings.

APPENDIX B

CIVIL MINUTES - GENERAL,

UNITED STATES DISTRICT COURT'S

continued hearing on Order to

Show Cause in Re Contempt.

APPENDIX C

ORDER PARTIALLY VACATING

CONVICTION AND CORRECTING

ILLEGAL SENTENCE, UNITED

STATES DISTRICT COURT.

vii.

Page

31.

31.

34.

46.

Table of Contents - Continued:

Page

APPENDIX D

CERTIFICATION TO DISTRICT COURT

(BANKRUPTCY RULE 9020(a) (3)),

REPORT AND RECOMMENDATION OF

BANKRUPTCY JUDGE RE: CONTEMPT D-1

viii.

TABLE OF AUTHORITIES

Cases Page

Application of Royal Bank

of Canada,

33 F.R.D. 296,302, 303,

(S.D. N.Y. 1963) 6,19

Cammer v. United States,

350 U.S. 399, 405,

76 S.Ct. 456,

100 L.Ed. 474 (1956) 25

Ex Parte Buskirk,

72 F. 14

(4th Cir. 1896) 34,36,37.

Ex Parte Speakman,

257 P. 986, 988

(Arix. 1927) 23,24

In Re Dellinger,

461 F.2d. 389, 399

(7th Cir. 1972) 25

In Re LaMarre,

494 F.2@. 753, 7357 -

(6th Cir. 1974) 38

In Re Watts,

190 U.S. l,

23 S.C8. 7iee

47 L.Ed. 933 (1903) 28

In Re Tumpson,

345 A.2d. 744

(Pa. 1975) 29,37

ix.

Table of Authorities - Continued:

Cases Page

Manness v. Meyers,

419 U.S. 449, 467,

95 S.Ct. 584 (1975) 28

Nix v. Whiteside,

U.S. ,

S.Ct. 988 (1986) 18

Nye v. United States,

(1941) 313 U.S. 33, 45-48,

61 S.Ct. 810,

85 L.Ed. 1171 21

Srybnik v. Epstein

13 F.R.D. 248, 249,

(S.D. N.Y. 1952) 6,19

United Sattes v. Rylander,

714 F.2d. 996, 1002,

(9th Cir. 1983) 22

Wolfrich Corp. v.

U.S. Automobile Assn.,

149 Cal.App.3d. 1206, 1211,

197 Cal.Rptr. 446 (1983) 26,27

Table of Authorities - Continued:

Constitution of the Page

United States of America

Fifth Amendment 2

Statutes

Title 18, United States Codes

Sections 401 and 401(1) 427453280

217225,35

Title 28, United States Codes

Section 1254(1) 2

Rules

Bankruptcy Rules,

Rule 9020(a) (3) 2

Federal Rules of

Civil Procedure,

Rule 30 14

Rule 30(a) 19,39,40,43,44

Rule 30(b) (1) 19,39,43,44

Rule 30(b) (6) 19

Rule 45(d) (1) 19

State Bar of California

Professional Conduct

Rule 7-101 3,26

i

Petitioner, ANDRES ALONSO, JR.,

respectfully petitions for a writ of

certiorari to review the judgment of the

United States Court of Appeals for the

Ninth Circuit.

OPINIONS BELOW

The unreported Memorandum Opinion of the

United States Court of Appeals for the

Ninth Circuit is reprinted as Appendix A

to this Petition. The unreported Order of

the United States District Court for the

Central District of California convicting

petitioner of criminal and civil contempt

is reprinted as Appendix B to this Petition.

The unreported Order of the United States

District Court for the Central District

of California partially vacating the

conviction and correcting illegal sentence

is reprinted as Appendix C to this Petition.

l.

The "Certification to District Court

(Bankruptcy Rule 9020(a)(3)); Report and

Recommendation of Bankruptcy Judge Re:

Contempt" is reprinted as Appendix D

to this Petition.

JURISDICTION

The judgment of the Court of Appeals

was entered on March 20, 1986. The juris-

diction of this court is invoked under

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

CONSTITUTIONAL, STATUTORY,

AND RULE PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in pertinent part:

"No person . .. Shall be...

deprived of life, liberty, or

property, without due process of

Me << « « *"

Title 18, U.S.C., Section 401,

provides:

"A court of the United States

shall have power to punish by fine

or imprisonment, at its discretion,

such contempt of its authority, and

none other, as --

"(1) Misbehavior of any person in

its presence or so near thereto as

to obstruct the administration of

justice;

"(2) Misbehavior of any of its

officers in their official

transactions;

"(3) Disobedience or resistance

to its lawful writ, process, order,

rule, decree, or command."

Rule 7-101 of the Rules of Professional

Conduct of the State Bar of California

provides:

"A member of the State Bar shall

not advise the violation of any law

or ruling of a tribunal unless he

believes in good faith that such

law, rule or ruling is invalid. A

member of the State Bar may take

appropriate steps in good faith to

test the validity of any law, rule

of a tribunal."

STATEMENT OF THE CASE

A. Background.

This is a criminal and civil contempt

proceeding against an attorney, petitioner,

ANDRES ALONSO, JR. The underlying action

involves the bankruptcy of Akros Installa-

tions, Inc., a California corporation

("Akros"), instigated by Grand National

Bank, Arrow Precision Products, Inc., and

Academy Manufacturing ("Creditors").

(E.R. 2.2/) Creditors attempted to serve

petitioner's clients, Fred Alexander and

Linda Alexander, with subpoenas for their

deposition and for production of documents.

(E.R. 69-70.) Because of fatal deficiencies

in service of the bankruptcy petition and

the resulting invalidity of the subpoenas,

1l/ “E.R. 2." refers to Page 2 of the

Appellant's Excerpts of Clerk's Record

filed in the Court of Appeals. The

excerpts are paginated consecutively.

4.

and on the advice of petitioner, the

Alexanders refused to comply with the

subpoenas. The bankruptcy judge, the

District Court, and the Ninth Circuit

Court of Appeals each reached different

conclusions why petitioner should be held

in contempt for his and his clients'

conduct.

B. The Bankruptcy Court's Contempt

Finding Against Petitioner for Advising

his Clients of their Rights.

Creditors filed a motion for an order

for contempt and sanctions against the

Alexanders and petitioner. (E.R. 72.) At

the hearing on the motion, petitioner con-

tended the subpoenas for his clients'

deposition were invalid because, contrary

to law, the case had not been properly

commenced by adequate service of the

defendant Akros with the bankruptcy petition,

and because, contrary to law, no notice

7

of the depositions had been given to Akros

when Akros was later properly served.

(E.R. 45-50.2/)

2/ Petitioner's legal argument was correct:

The subpoenas for the deposition of his

clients were invalid. As the bankruptcy

court had earlier ruled (E.R. 33-35.), the

defendant in the bankruptcy action, Akros,

had not been properly served with the

bankruptcy petition. There was no personal

service within the time prescribed by the

rules, and attempted service by mail had

been unsuccessful. Where the plaintiff has

not properly initiated the case by bringing

the defendant within the jurisdiction of

the court by service of process, the plaintiff

is not permitted to engage in discovery

against prospective witnesses. (Application

of Royal Bank of Canada, 33 F.R.D. 296 (S.D.

N.Y. 1963).) "{[A] plaintiff should not be

permitted to use the federal rules' discovery

procedures until, and unless, the prospective

party has been subjected to the jurisdiction

of the court via service of process."

(33 F.R.D. at 302.)

Further, written notice to the opposing

party is a prerequisite to the issuance of

a valid subpoena. (Srybnik v. Epstein, 13

F.R.D. 248, 249 (5.D. B.¥. 1952).}) There-

fore, the failure of a party to serve upon

the opposing party a written notice of taking

a deposition of a non-party invalidates any

subpoena which has been issued by the clerk

without proper proof of notice of taking of

the deposition. The creditors in this case

did not and could not have given valid notice

of taking of the depositions of the attorney's

6.

ee

The following excerpt from the hearing

is presented in full because it constitutes

the entire basis upon which petitioner was

later held in criminal and civil contempt:

(E.R. 49617 toe $2221.)

"THE COURT: The court finds --

let me give you a chance to expunge

the contempt. Are you going to

produce Mr. and Mrs. Alexander for

depositions?

"MR. ALONSO: If Your Honor is

stating that you have issued an

order, I want the record to be very

clear. Is Your Honor stating that

you have authority to order a sub-

poena against non-party litigants

before the actual debtor or alleged

debtor is served with the involuntary

petition of bankruptcy?

"THE COURT: Yes, sir.

"MR. ALONSO: Is that what the

court is stating?

"THE COURT: Yes, sir.

"MR. ALONSO: Okay, we take

exception to that.

clients since the defendant in the action,

Akros, had never been served, as of the time

that the clients were served with the sub-

poenas to appear for the taking of their

depositions.

7.

"THE COURT: I am sure you do.

"MR. ALONSO: And of course we

will file an appeal, you know, of

your ruling.

"THE COURT: You may file what-

ever you want. What I am saying is,

are going to produce the Alexanders

for deposition?

"MR. ALONSO: Mr. and Mrs.

Alexander were following my legal

advice and the legal advice of my

associate in my law firm. When we

looked at the law we thought that

the case law was clearly in our

favor, that since the court was

acting under a misapprehension --

"THE COURT: Let's focus on the

big question. Are you going to

produce the Alexanders?

"MR. ALONSO: Am I going to

produce the Alexanders?

"THE COURT: That is right, for

deposition.

"MR. ALONSON [sic]: If, after

we exhaust our appellate remedies <--

"THE COURT: So the answer is no.

"MR. ALONSO: The answer is yes,

we will produce Mr. and Mrs.

Alexander after we have exhausted

Our appellate remedies.

(Raia ata

"THE COURT: So you are not going

to produce them now.

"MR. ALONSO: Not today.

"THE COURT" When are you going

to produce them?

"MR. ALONSO: When we exhaust our

appellate remedies.

"THE COURT: You are not going

to produce them

"MR. ALONSO: No, until the

court rules that Your Honor is

correct and we are wrong.

"THE COURT: Okay.

"MR. ALONSO: And if you are going

to hold them in contempt, than I am

going to request that Your Honor

grant a stay pending the appellate

process carrying out its ultimate

conclusion.

"THE COURT: The motion for

contempt and sanctions against

Mr. and Mrs. Alexander and Mr.

Alonso is granted. They are

cited --

"MR. ALONSO: Excuse me, against

Mr. Alonso?

"THE COURT: Yes, sir, you are

not producing your people.

"MR. ALONSO: I have never been

served with any order to appear for

9.

any deposition.

"THE COURT: Sir, I just heard you

say that your clients did you [sic]

appear because of your legal advice.

"MR. ALONSO: Yes.

"THE COURT: I am citing you for

contempt also.

"MR. ALONSO: But you did not

serve me with any order.

"THE COURT: You are now served

with an order, sir, to produce your

clients for deposition forthwith to

Mr. Palmer at his office for

deposition.

"MR. ALONSO: When you say forth-

with, what does that mean?

"THE COURT: When do you want to

schedule it, Mr. Palmer?

"MR. PALMER: I would suggest

the week after next.

"THE COURT: Is that convenient

for your calendar, Mr. Alonso, and

to your clients?

"MR. ALONSO: What date did he

say?

"THE COURT: You give me a

convenient date, Mr. Alonso, in

December or in November if that

is more convenient for you.

10.

|

"MR. ALONSO: No. December

llth, Your Honor.

"THE COURT: Is that convenient

to you, Mr. Palmer?

"MR. PALMER: That is acceptable,

Your Honor at 10:00 o'clock?

"THE COURT: 10:00 o'clock; is

that convenient, Mr. Alonso?

"MR. ALONSO: 10:00 o'clock would

be fine, Your Honor.

"THE COURT: And you will give

him a card for your office location,

Mr. Palmer?

"MR. PALMER: Yes, I will send

him notice.

"THE COURT: I am going to hold

the motion for contempt and sanctions,

then, off calendar and treat is as

expunged if you produce your clients

for deposition, Mr. Alonso. The

motion to dismiss involuntary

petition is denied. The depositions

are reset at December ll, 1984 at

the ofice of Mr. Palmer at 10:00

a.m."

Ll.

C. The District Court's Contempt

Finding against Petitioner for his

Failure to "Produce" his Clients.

The Alexanders did not appear for

the deposition, and the bankruptcy court

heard a new motion for contempt and sanc-

tions against the Alexanders and petitioner.

(E.R. 4.) The matter was certified to the

District Court with a report and recommenda-

tion. (E.R. 1; Appendix D.) The District

Court issued an order to show cause re

contempt. (E.R. 7.) At the hearing, the

parties agreed that the evidence before

the court, consisting of the certification

from the bankruptcy judge and the return

and reply filed by the parties, would

constitute the evidence. (E.R. 115-116.)

The District Court found petitioner

and his clients in contempt based entirely

on these oral findings: (E.R. 131:19 to

133:22.)

12.

"THE COURT: First with respect

to respondents’ attorney, Mr.

Andres Alonso, Jr., I find Mr.

Alonso in criminal contempt of

court based upon the following

findings which I make beyond a

reasonable doubt.

"I'm not so concerned so much

with all the technicalities back

and forth to the November 20th

hearing. I think the courts are

split as to whether or not the

proper mode to attack sufficient

notice to a deposition, the

validity of a subpoena of a

deposition if notice is not

given is whether or not necessary

to quash or whether or not it's

appropriate to refuse to appear

and attack it that way. I based

the order of contempt on the fact

that from my reading of the tran-

script of November 20th, 1984

indicates to me clearly beyond

a reasonable doubt that Mr. Alonso,

misled the court that he was

agreeing to produce his clients.

Further, when Judge Naugle made

an order that quote -- after Mr.

Alonso objected that first the

Court said, ‘I am citing you for

contempt also.’ Mr. Alonso said,

‘You did not serve me with any

order.'

‘THE COURT: You are now served

with an order, sir, to produce

your clients for deposition forth-

with to Mr. Palmer at his office.'

13.

"That's a valid order of this

court. Federal Rules of Civil

Procedure, Rule 30 recognizes

that the court can make an order

bearing [sic] the notice require-

ment under the rule, and so a direct

order was made to Mr. Alonso, Mr.

Alonso led the court to believe

that he was able and would comply

with the order, no showing was made

that he was unable to comply with

the order. In fact, the showing

is under the affidavits filed in

this case, the deponents did not

appear solely on the advise ([sic]

of Mr. Alonso. So that, I think,

the failure to produce the clients

for the deposition when he agreed

to produce them --

a oe cs teh,

"The court ordered that the

clients be produced for deposition

on December llth and that order

was deliberately disobeyed so

whether or not the subpoena was

valid, whether or not his agreement

was conditional, none of that atters

because there's a direct disobedience

of the order of the court.

"For that reason I find Mr.

Alonso in criminal contempt of

court. I find also since the matter

has not been remedied that he stands

in civil contempt of court.

"With respect to the Alexanders,

I don't know whether or not the

record is sufficient to support a

finding of criminal contempt. I

think in the interest of justice it

14. |

————<_—

would not be equitable to hold

them in criminal contempt because

they were acting under the advise

[sic] of counsel, and there's

nothing in the record that indi-

cates that the Alexanders were

not acting in good faith and

following the advise [sic] of

their attorney. But they still

today stand in civil contempt

because they did not comply with

the order Judge Naugle made on

November 20th.

"I'm going to impose sentence

forthwith.”

D. The Punishment of Petitioner for

Criminal and Civil Contempt.

On the criminal contempt, the court

sentenced petitioner to pay a fine of $500

and to serve five days in prison. The

Court suspended the sentence and placed

the petitioner on probation for one year

on condition that he produce his clients

for deposition within 30 days and that

he comply with all discovery rules in the

case. (E.R. 139-140.) The court later

acknowledged it had improperly imposed

15.

both a fine and imprisonment for a contempt

that was not also a criminal offense, and it

deleted that portion of the sentence imposing

a fine. (E.R. 144-145.) On the civil con-

tempt, the court ordered petitioner to pay

$1,500 as partial costs to creditors. As

a condition of probation, Mr. Alonso was

ordered to produce his clients for deposi-

tion within 30 days. (E.R. 140.)

The court ordered the Alexanders to

appear for their deposition within 30 days.

If they failed to appear, for each day after

they would be fined $100. Each of the

Alexanders was ordered to pay $250 as

partial attorney's fees to Creditors.

(E.R. 140-141.) The Alexanders subsequently

appeared for their deposition.

E. The Appeal.

Petitioner and the Alexanders appealed

the contempt order. (E.R. 146-148.) The

16.

ee ee Se ee

|

Ninth Circuit Court of Appeals affirmed

the District Court's criminal and civil

contempt findings against petitioner.

(Appendix A.) The appellate court stated:

"The District Court's finding

that Alonso represented to the

bankruptcy court that he would

produce his clients for deposition,

when he had no intention to do so,

is not clearly erroneous."

Ironically, the court reversed the

civil contempt judgments against petitioner's

clients:

"The record does not indicate that

the Alexanders had notice of the

bankruptcy court's order made to

their attorney, Alonso."

Petitioner thus stands guilty of

Criminal and civil contempt for failing

to have his clients do that which his

clients did not have to do.

A7-

REASONS FOR GRANTING THE PETITION

THIS CASE PRESENTS IMPORTANT AND

NOVEL ISSUES REGARDING A FEDERAL

COURT'S AUTHORITY TO PUNISH AN

ATTORNEY FOR CRIMINAL AND CIVIL

CONTEMPT FOR REFUSING TO VIOLATE

HIS LEGAL AND ETHICAL OBLIGATIONS

TO HIS CLIENTS.

This court recently grappled with the

difficult legal and ethical problems facing

an attorney torn between his duty to best

represent his client and his ethical obli-

gations to the court. (Nix v. Whiteside,

___—-U.S. __—, 106 S.Ct. 988 (1986).) The

present case presents similarly difficult

problems facing an attorney when a court

orders him to have his clients do that which

he honestly and correctly believes his clients

are not required to do.

18.

ee ee eee ee Ye nn ee

Petitioner believed that his clients

had not been properly subpoenaed for their

depositions because the depositions were

set and the subpoenas issued in violation

of Rules 30(a), 30(b) (1), 30(b) (6), and

45(d) (1) of the Federal Rules of Civil

Procedure. Petitioner also relied, in giving

his advice to his clients, upon the holdings

in the cases of Application of Royal Bank

of Canada, supra, 33 F.R.D. 296, 303; and

Syrbnik v. Epstein, supra, 13 F.R.D. 248.

Yet the bankruptcy court held him in contempt

for advising his clients of their rights,

and ordered him to produce his clients for

the deposition, and then agreed to expunge

the contempt but only if petitioner produced

his clients for their depositions. When

the clients did not appear, petitioner was

convicted of criminal and civil contempt.

Petitioner was thus trapped between his

Obligation to advise his clients of their

19.

SESS

legal rights and his obligation to carry

out a direct order, after being held in

contempt. The courts below have effectively

required petitioner to abandon his role as

advisor to his clients and to become an

enforcer of court orders against his own

clients.

If for no other reason, certiorari

should be granted to draw a clear line for

all attorneys practicing in federal courts

between professional obligation to a client

and legal duty to a court.

Il

THE DECISION OF THE COURT OF APPEALS

CONFLICTS WITH THE EXPRESS TERMS OF

THE CONTEMPT STATUTE, TITLE 18, U.S.C.,

SECTION 401, AND DECISIONS OF THIS

COURT AND OTHER COURTS ON THE PER-

MISSIBLE SCOPE OF THE CONTEMPT POWER.

A. The Contempt Statute is Expressly

and Narrowly Drawn.

Because the power to punish for

20.

criminal contempt is easily abused and

was abused in the past (see, Nye v. United

States, (1941) 313 U.S. 33, 45-48, 61

S.Ct. 810, 85 L.ED. 1171), Congress has

carefully circumscribed the scope of that

power in Title 18, U.S.C., Section 401

(emphasis added):

"A court of the United States

shall have power to punish by fine

Or imprisonment, at its discretion,

such contempt of its authority,

and none other, as --

"(1) Misbehavior of any person

in its presence or so near thereto

as to obstruct the administration

of justice;

"(2) Misbehavior of any of its

officers in their official trans-

actions;

"(3) Disobedience or resistance

to its lawlful writ, process, order,

rule, decree, or command."

As we now demonstrate, the conduct

of petitioner in this case is not and

should not be circumscribed by any of these

provisions. The language of the statute

21.

Se

and the decisions of this Court and other

appellate courts compel that conclusion.

B. An Attorney cannot be required to

"Produce" his Clients for a Deposition.

1. Actual Impossibility.

The District Court's finding of

a

contempt was based on petitioner's failure

to comply with an oral order of the bank-

ruptcy court on November 20, 1984:

(E.R. 51:22-24.)

"THE COURT: You are now served

with an order, sir, to produce your

clients for deposition forthwith to

Mr. Palmer at his office for depo-

sition."

Inability to comply with a court's

order is a complete defense to a contempt

charge. (United States v. Rylander, 714

F.2d 996, 1002 (9th Cir. 1983).) Petitioner

had no ability to physically produce his

clients or anyone else for a deposition.

The ability to appear rests in the person

22.

to make the appearance, no one else.

A case in point is Ex Parte

Speakman, 257 P. 986 (Ariz. 1927), involv-

ing a contempt citation against an attorney

who failed to comply with an order to pro-

duce persons signing affidavits of prejudice

against a judge. The Arizona Supreme Court

concluded that the attorney could not be

found in contempt because he did not have

the ability to comply (257 P. at 988):

"Regardless of what course the

court could or should have pursued,

it is very clear that the law did

not authorize the procedure it did

adopt for the simply reason that

the order required the petitioner

to produce in court the persons

signing the affidavit, and there is

no principal of law or rule of court

to which he is amenable, making it

his duty to perform a service of

this character, even upon the

direction of the court. It is

evident upon its face that the

order directed him to do something

he could not do in case the affiants'

decline to appear upon his mere

request, because he had in his own

right no authority to bring them in

at all hazards -- vi et armis, if

necessary -- in violation of their

23.

constitutional rights, and the court

had clothed him with no such power.

No bench warrant or any other pro-

cess confronting it was given him,

and, if there had been, he would

have been under no obligaticn to

serve it. His duties as an officer

of the court did not require him

to perform the functions of an

officer elected or appointed for

this purpose."

The Speakman court further

explained (257 P. at 988):

"While a..torneys are in a

sense officers of the court, and

as such owe it the duty of main-

taining a respectful attitude

toward it, of being honest and

fair in their dealings with it,

and obedient to its rules and

proper orders, yet this is the

extent to which they are required

to go. Given a literal instruction,

therefore, it is clear that the

order was void, and imposed upon

the petitioner no obligation to

comply with its terms."

2. Ethical Impossibility.

Even if petitioner had the

physical ability to compel his clients to

appear for deposition, it is and should be

24.

totally inappropriate for the court to

impose such a duty on him. That duty

would seriously impair the attorney-client

relationship. How could petitioner advise

his clients that they had no legal obliga-

tion to appeer and yet at the same time

"produce" his clients for that deposition?

As the Court of Appeals recognizes in In

Re Dellinger, 461 F.2d 389, 399 (7th Cir.

1972):

"An attorney has no affirmative

Obligation to restrain his client

under the pain of contempt citation

indeed, compelling an attorney

to control the conduct of his client

under threat of the contempt sanction

might well destroy the confidence in

the attorney-client relationship

which is necessary to a proper and

adequate defense."

Mcreover, within the meaning of

Title 18, U.S.C., Section 401, petitioner

was not an "officer" of the court. (Cammer

v. United States, 350 U.S. 399, 405, 76

S.Ct. 456, 100 L.ED. 474 (1956).) He

25.

ee

could not and should not be deputized by

the court to carry out orders against his

own clients.

Petitioner, a member of the

California Bar, was constrained by the

Rules of Professional Conduct which

recognize that an attorney, in the proper

discharge of his responsibilities to his

client, may question the validity of a

court order and advise his client accord-

ingly. Rule 7-101 provides:

"A member of the State Bar

shall not advise the violation of

any law or ruling of a tribunal

unless he believes in good faith

that such law, rule or ruling is

invalid. A member of the State Bar

may take appropriate steps in good

faith to test the validity of any

law, rule or ruling of a tribunal.”

The California Court of Appeals

summarized the broad sense of petitioner's

professional duty to his clients in

Wolfrich Corp. v. United Services Auto-

mobile, Assn., 149 Cal.App.3d 1206, 1211,

26.

197 Cal.Rptr. 446 (1983):

"Attorneys have a high obli-

gation to represent and protect

the interests of their clients

zealously, and to that end may pro-

perly challenge the validity of any

law or decision. [Citations.]

- « « »« Clients have a right to

expect their attorneys to render

complete and candid advice.

{(Citations.] Clients seeking to

minimize their losses or maximize

potential gains frequently want,

and are entitled, to know the pre-

cise limits of the laws within which

they can act without committing any

violation thereof. This is the

primary reason why many persons

retain attorneys. Consequently,

attorneys must be free to fully

advise and represent their clients

without fear of subjecting them-

selves to liability as a result of

the proper discharge of their pro-

fessional obligations. Any rule

to the contrary would constitute

a serious impairment to the attorney-

client relationship, and a resulting

deleterious effect on the adminis-

tration of justice. ([Citations.]J"

This court, too, has emphasized

the danger of interfering in the attorney-

client relationship by punishing an attorney

for good faith advice to his client. As

stated in Manness v. Meyers, 419 U.S. 449,

27.

467, 95 S.Ct. 584 (1975):

"There is a crucial distinction

between citing a recalcitrant witness

for contempt, [citation] and citing the

witness's lawyer for contempt based only

on advice given in good faith to

assert the privilege against self-

incrimination. The witness, once

advised of the right, can choose

for himself whether to risk con-

tempt in order to test the privilege

before evidence is produced. That

decision is, and should be, the

witness’, but, if his lawyer may be

punished for advice so given there

is a geniune risk that a witness

exposed to possible self-incrimina-

tion will not be advised of his

right. Then the witness may be

deprived of the opportunity to

decide whether or not to assert

the privilege.

"An early example of this

situation is found in In re Watts,

190 U.S. 1, 23 &§.Ct. 718, 47 L.Ed.

933 (1903). There lawyers advised

their clients in good faith that

state, not federal, court had

bankruptcy jurisdiction over a

certain property in the hands of

a state receiver. This advice led

to a collision between the state

and federal courts, and contempt

citations for the lawyers.

Although this Court held that the

lawyers' advice was substantively

incorrect, it refused to allow the

federal contempt conviction stand

because there was no evidence the

28.

advice was given in bad faith.

[Citation.] Mr. Chief Justice

Fuller, speaking for the Court,

said:

""'In the ordinary case of

advice to clients, if an attorney

acts in good faith in the honest

belief that his advice is well

founded and in the just interests

of his client, he cannot be held

liable for error in judgment.

The preservation of the independence

of the bar is too vital to the due

administration of justice to allow

of the application of any other

general rule.' [Citation.]"

An analogous case is In re

Tumpson, 345 Ai2d 774 (Pa. 1975). In

Tumpson, a juvenile was told by a probation

officer that the judge had ordered him to

appear at a hearing. On the advice of his

counsel, the juvenile did not appear. The

juvenile court held the attorney in contempt

for advising his client to disregard the

court's order. The contempt citation was

reversed on appeal (345 A.2d at 775, fn.

omitted) :

"Our review of the record has

convinced us that appellant may not

be found in contempt. The oral

order which appellant allegedly

advised his client to disregard was

never entered of record, and con-

sequently had no force or effect

"This court has recently stated

that the court's power to punish for

contempt is limited to situations

in which it has both the jurisdic-

tion and the power or authority to

render the particular decree or

order. [Cititation.] While the

court below had the authority to

order the juvenile to appear at a

hearing in compliance with the

Juvenile Act [citation], no valid

order was ever entered of record.

Consequently the court could not

hold appellant in contempt for

advising a client to disregard a

non-recorded order. [Citation.]"

In the present case, the District

Court thus could not hold petitioner in

contempt for advising his clients to

disregard invalid court subpoenas. Order-

ing him to produce his clients despite his

advice, or coercing a promise to produce

his clients despite his advice, are the

30.

same wrongs in a different guise.

C. Petitioner did not Promise to

"Produce" his Clients; and even if he

did, Breach of such a Promise is not

a Contempt of Court.

l. There was no Promise.

The Court of Appeals upheld the

District Court's criminal and civil

contempt findings against the attorney,

concluding as follows (Appendix A):

"The District Court's finding

that Alonso represented to the

bankruptcy court that he would

produce his clients for deposition,

when he had no intention to do so,

is not clearly erroneous."

Petitioner submits the only fair

reading of the Transcript of the bankruptcy

court hearing is that petitioner never

agreed or stipulated that he would produce

his clients for a deposition. (See,

STATEMENT OF THE CASE, Part B, above.)

The only consensus was as to the date his

clients were available, and that came only

31.

after the court held both petitioner and

his clients in contempt of court. Indeed,

the bankruptcy court began its colloquy with

petitioner by making the appearance of his

clients for deposition the decisive factor

in whether or not he would be punished for

contempt: (E.R. 49:17-20.)

"THE COURT: The court finds

-- let me give you a chance to

expunge the contempt. Are you going

to produce Mr. and Mrs. Alexander for

deposition?

Petitioner made it clear that his

clients were not going to voluntarily appear

for the deposition: (E.R. 50:24 to 51:6.)

"THE COURT: So you are not

going to produce them now?

"MR. ALONSO: Not today.

"THE COURT: When are you

going to produce them?

"MR. ALONSO: When we exhaust

our appellate remedies.

"THE COURT: So you are not

going to produce them?

32.

At Sah he Atami erate aN.

"MR. ALONSO: No, until the

court rules that Your Honor is

correct and we are wrong.

"THE COURT: Okay."

Moreover, contrary to the statement

by the Court of Appeals, the District Court

did not subsequently find that petitioner

misled the bankruptcy judge. While the

District Court started out suggesting that

as a basis for the contempt finding, the

court concluded with its actual findings

as follows: fess Agar?

"The court ordered that the client

be produced for depositions on December

llth and that order was deliberatingly

disobeyed so whether or not the subpoena

was valid, whether or not his agreement

was conditional, none of that matters

because there's a direct disobe-

dience of the order of the court.

"For that reason I find Mr.

Alonso in criminal contempt of

court. I find also since the

matter has not been remedied that

he stands in civil contempt of

court."

In short, the Court of Appeals

eas

affirmed on the basis of a finding that

was never made.

2. Breach of Promise does not

Obstruct Justice.

But even assuming that petitioner

had promised or agreed to produce his

clients, failure to live up to such a

promise is no grounds for holding petitioner

in criminal contempt. A case in point is

Ex Parte Buskirk, 72 F. 14 (4th Cir. 1896)

where a contempt citation for violation of

a stipulation was nullified. Absent viola-

tion of a clear and direct court order, no

contempt can be found under federal law.

Buskirk states (72 F. at 20):

", . . the order first entered

sets up the violation of a 'stipula-

tion' made in open court as the

foundation of the proceedings for

contempt. However reprehensible

such conduct on the part of Buskirk

may have been, -- proceeding upon

the theory that the charge was true,

which he, however, denied in his

answer, -- it nevertheless did not

34.

ee ee

constitute contempt to the court or

its orders, and did not authorize

any proceedings for contempt under

the provisions of the law as it

then existed. A careful examina-

tion of those records shows that

Buskirk had not been ordered to

do or decreed not to do any act

or thing in said chancery suit

prior to the time he was proceeded

against, fined, and commited for

contempt. Such being the case,

the court had no jurisdiction of

said contempt proceedings, and

the rule should not have been

granted."

Since petitioner did not violate

an order of the court, and since he was not

an officer of the court, the only possible

basis for contempt under Title 18, U.S.C.,

Section 401 is subdivision (1): "Misbe-

havior of any person in its presence or

so near thereto as to obstruct the

administration of justice."

The failure of petitioner to

produce his clients at a deposition as

"promised," however, did not constitute

such misbehavior. First, the breach of

35.

promise was not in the presence of the

court or so near thereto. Second, it did

not obstruct the administration of justice.

While the deposition of his clients was

somewhat delayed, it would have been delayed

anyway. As we have shown, there was no

valid outstanding subpoena for the deposi-

tion of the clients. And, as the Court

of Appeals itself found, the clients were

never served with an order to appear at

the deposition nor with notice that their

attorney was to produce them for deposi-

tion. Petitioner may have offended the

sensibilities of a bankruptcy judge, but

he in no way obstructed justice in this

case.

In the case at bar, just as in

Ex Parte Buskirk, supra, prior to the time

that petitioner was held in contempt by

the oral ruling of the bankruptcy judge,

petitioner, as was Buskirk, had not been

36.

EE

ordered to do or decreed not to do any

act or thing in this case. Furthermore,

petitioner, as did Buskirk, in his answer,

denied in his Objection to Notice of Ruling

dated November 29, 1984, that he had stip-

ulated to appear with his clients for their

depositions. Petitioner, immediately after

receipt of a Notice of Ruling dated November

20, 1984, from counsel for creditors, filed

an Objection to Notice of Ruling dated

November 29, 1984, which stated, in part:

", . . . %It was not agreed

that in lieu of an order for contempt,

the respondents Fred Alexander and

Linda Alexander through their

attorney, Andres Alonso, Jr.,

stipulated to appear for a deposition

at the law offices of Edward B.

DJang.

"Counsel for respondents did

not stipulate to appear but rather,

advised the court that respondents

would not appear for their depo-

sitions until all appeal procedures

had been exhausted ....

Additionally, as In Re Tumpson,

Supra, no valid order was ever entered of

37.

incite

record. After petitioner was held in

contempt, and then was ordered to

"produce" his clients for deposition,

the court never signed an order which was

entered on record. Instead, the only

documents which were entered of record were

the Notice of Ruling from the petitioning

creditors dated November 20, 1984, and the

Objection to Notice of Ruling from peti-

tioner and his clients dated November 29,

1984.

To petitioner's amazement, the

petitioning creditors again failed to serve

Akros, who was a party to the proceedings,

with any written notice whatsoever of the

purportedly scheduled depositions of

petitioner's clients for December 1l, 1984.

In short, neither prior to nor after Novem-

ber 20, 1984, did Akros receive from the

petitioning creditors a Notice of Taking

Depositions directed to Akros, as required

38.

eee

by Rule 30(b) (1) of the Federal Rules

of Civil Procedure.

Thus, since on November 20, 1984,

30 days had not lapsed since the time that

Akros was finally served with the summons

and the involuntary petition, the peti-

tioning creditors had to file a motion,

and seek leave of court, in order to obtain

an order to take the depositions of peti-

tioner's clients, Elus, they had to give

notice to Akros. This was exclusively

the responsibility of the creditors, and

not the court's,as clearly mandated by

Rule 30(a) of the Federal Rules of Civil

Procedure. Since the foregoing motion

was not before the bankruptcy court, and

since no notice had been given to Akros,

the bankruptcy court could not enter any

ruling whatsoever, let alone hold peti-

tioner in contempt, relying, in error,

on the fact that the original subpoenas

39.

served on petitioner's clients were

valid.

Petitioner contends that absent

a motion before the court, the court, on

its own, cannot become an advocate in

favor of one party and against another.

When the bankruptcy court held petitioner

and his clients in contempt, and thereafter

ordered petitioner to "produce" his clients

for deposition, and that if he did, the

contempt would be expunged, it was

tantamount to the court having become

an advocate for the petitioning creditors,

and tantamount to ruling that the peti-

tioning creditors did not have to comply

with the exact and expressed language of

Rule 30(a) of the Federal Rules of Civil

Procedure.

It is petitioner's further con-

tention that the bankruptcy court's ruling

holding petitioner in contempt on November

40.

20, 1984, relying, in error, on subpoenas

which were invalid, was an invalid and

unenforceable ruling, in that prior to

November 20, 1984, petitioner was under

no order to do, or not to do, any act or

thing, which petitioner failed to do or

not to do.

As stated previously, and as set

forth in the entire transcript of the

proceedings of November 20, 1984, and

admitted by the bankruptcy court, peti-

tioner had not been ordered to do anything,

Or not to do anything, prior to November

20, 1984, yet, petitioner was held in

contempt simply because he had given

correct legal advice to his clients, as

he was, and is required to do, even

though the court did not agree with the

petitioner's interpretation of the law

which he relied upon in giving his legal

advice to his clients. To petitioner's

41.

shock and amazement, he was held in

contempt, and was then told that the

contempt would be expunged if he

"produced" his clients for their

depositions. This was, in petitioner's

sincere belief, a direct interference by

the court, of the attorney-client

privilege, since petitioner had told his

clients that the subpoenas were invalid.

Petitioner then felt, as he had stated

on November 20, 1984, that the ruling of

November 20, 1984, would be challenged

via the appellate process, which petitioner

knew would follow, when petitioner elected

not to “expunge the contempt." To have

done otherwise, would have offended, and

would have violated due process of law,

and would have interfered with the

attorney-client relationship, in petition-

er's opinion, because he could not now

compel his clients to appear for their

42.

depositions, after already having told

his clients that the subpoenas were

invalid, for the reasons set forth in

this petition.

Petitioner further asserts that

the bankruptcy judge was in violation of

Rule 30(a) and Rule 30(b)(1) of the

Federal Rules of Civil Procedure in that

on November 20, 1984, when he held peti-

tioner and his clients in contempt, the

court was acting as an advocate, because

on November 20, 1984, the court did not

have before it a motion seeking to take

the depositions of the petitioner's

clients. The only motion before the

court was to seek to hold petitioner and

his clients in contemp’ based on the fact

that the clients did not appear for their

depositions, relying on the subpoenas which

had been previously served upon the clients,

which petitioner considered invalid for

43.

the reaons previously stated.

Rule 30(a) of the Federal Rules

of Civil Procedure states, in relevant

part, as follows:

", . ». « Leave of court,

granted with or without notice,

must (emphasis added) be obtained

only if the plaintiff seeks to

take a deposition prior to the

expiration of 30 days after

service of the summons and

complaint upon defendant... .

Rule 30(b) (1) of the Federal Rules

of Civil Procedure states, in relevant

part, as follows:

"A party desiring to take

the deposition of any person upon

oral examination shall give reason-

able notice in writing to every

Other party to the action. ...

(Emphasis added.)

In short, petitioner has been

punished with a prison term, probation,

and monetary sanctions because he did

not force his clients to do that which

they did not have to do and which was

contrary to their best interests, in

44.

his own correct, and honest legal advice

to them. Petitioner submits that this

conflicts with fundamental notions of due

process of law, and is an unfair and

irrational basis upon which to unleash

the awesome power of criminal contempt

by the federal courts.

45.

CONCLUSION

This case invokes multiple grounds why

review should be granted. It presents

important questions of federal law which,

if they have not already been decided by

this Court, should be, and to the extent

that they have been decided, they have

been decided in contrary fashion. The

judgment of the Court of Appeals upholds

such a significant and unwarranted departure

from the accepted and usual course of

judicial proceedings, as to call for an

exercise of this Court's right to supervise

the processes of the federal courts.

The power to punish for contempt is

"awesome." (In re LaMarre, 494 F.2d 753,

757 (6th Cir. 1974).) In this case, the

exercise of that power was beyond all

bounds of reason and threatens the good

name of an attorney who wassimply doing

46.

the best he could, within the limits of

the law, and the demands of his pro-

fessional responsibilities, for his

clients.

Certiorari, therefore, should be granted

and the judgment of the Court of Appeals,

reversed.

Respectfully submitted,

Law Offices of

ANDRES ALONSO, JR.

By

Andres Alonso, Jr.

In Propria Persona

47.

APPENDIX A

APPENDIX A

In re

Akros Installations, Inc.,

a California corporation,

Debtor.

Grand National Bank,

Arrow Precision Products, Inc.,

and Academy Manufacturing,

Petitioners-Appellees,

Vv.

Fred Alexander, Linda Alexander,

and Andres Alonso, Jr.,

Respondents-Appellants.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 85-5900

U.S.D.C. No. CV-85-566-AWT

U.S.B.C. No. LA-84-14686-JA/DN

An Appeal from the United States District

Court for the Central District of

California, Hon. A. Wallace Tashima, Judge

Presiding, Argued and Submitted: March 5,

1986, Pasadena, California

Before: Pregerson, Poole, and Thompson, -

Circuit Judges.

ORDER

We affirm the District Court's criminal

and civil contempt findings against Andres

Alonso. The District Court's finding that

Alonso represented to the bankruptcy court

that he would produce his clients for

deposition, when he had no intention to do

so, is not clearly erroneous.

A-1l

However, we reverse the civil contempt

judgments against his clients, the

Alexanders. The record does not indicate

that the Alexanders had notice of the

bankruptcy court's order made to their

attorney, Alonso.

Each party to bear its own costs.

Filed: March 20, 1986

APPENDIX B

In re

Akros Installations, Inc.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

U.S.D.C. No. CV-85-566-AWT

U.S.B.C. No. LA-84-14686-DN

CIVIL MINUTES - GENERAL

Dated: May 6, 1985

Present: Hon. A. Wallace Tashima, Judge

Shelley Keir, Deputy Clerk

Sydney Lawrence,

Court Reporter

Attorneys Present for Plaintiffs:

James H. Palmer

Attorney for Creditors

Attorneys Present for Defendants:

Thomas J. Kelley

Attorney for Debtors:

Fred and Linda Alexander

and for attorney,

Andres Alonso, Jr.

Proceedings:

Continued Hearing on Order to Show

Cause in Re Contempt.

All written evidence having been sub-

mitted, Court hears arguments from counsel.

Court finds Attorney Alonso in civil and

criminal contempt and renders judgment as

follows: For the Criminal Contempt: Court

orders Alonso to pay fine of $500, to the

U.S. Treasury through the Clerk, U.S.

B-1

District Court and that Alonso is committed

to the custody of the Attorney General or

his authorized representative for imprison-

ment for a period of five days. Execution

of the sentence of imprisonment only is

suspended and attorney Alonso is placed on

summary probation for a period of one year

on the conditions that 1) he produce his

clients, the Alexanders, for deposition

within 30 days and 2) that he comply with

all discovery rules. For the Civil

Contempt: Court orders Alonso to personally

pay costs in the sum of $1500, and to pro-

duce his clients, the Alexanders, for

deposition on a date agreeable to counsel

within 30 days, or, if no agreement is

possible, on 10 days notice by Attorney

Palmer. Attorney Alonso is advised of his

right to appeal. On Alonso's request, court

orders the execution of the Criminal Judg-

ment stayed for 10 days to permit him to

B-2

file an appeal.

Court finds Fred and Linda Alexander in

Civil contempt and orders each of them to

pay $250, in attorney's fees and to appear

for their depositions within 30 days on a

date agreeable to counsel, or, if no agree-

ment, on 10 days notice by Attorney

Palmer. Court further orders that an

additional $100, per day per person will

be assessed for each day they do not

appear for their depositions.

APPENDIX C

In re

Akros Installations, Inc.,

a California corporation,

Debtor.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

U.S.D.C. No. CV-85-566-AWT

ORDER PARTIALLY VACATING CONVICTION

AND CORRECTING ILLEGAL SENTENCE

Filed: July 22, 1985

Respondent Andres Alonso, Jr., was

convicted of criminal contempt in

violation of 18, U.S.C. §§ 401(3) and

402. He was sentenced to pay a fine of

$500 and to 5 days' imprisonment,

execution of the sentence of imprison-

ment only was suspended and respondent

was placed on summary probation for a

period of one year. He has moved for

an order correcting the sentence as

illegal.

The contumacious act for which

respondent was convicted does not

independently constitute a criminal

C-1l

offense. Therefore, it was error to

convict him under 18 U.S.C. § 402.

Steinert v. United States District Court,

543 F.2d 69, 70 (9th Cir. 1976). The

conviction for violation of § 402 is

vacated and the reference in the judgment

of conviction to "§ 402" is stricken.

Respondent, therefore, stands convicted

only of violation of 18 U.S.C. § 401, i.e.,

reliance by the court on § 402 at sentencing

was error. A sentence for violation of

§ 401 cannot include both fine and imprison-

ment. In re Osborne, 344 r.2G6 6il, 626

(9th Cir. 1965). For this reason

respondent's motion to correct the sentence

is granted.

Respondent represented at the hearing

that the fine imposed has not yet been

paid.

IT IS ORDERED that the sentence imposed

on respondent Andres Alonso, Jr., on May

C-2

6, 1985, is corrected by deleting there-

from the portion imposing the payment of

a fine to the United States Treasury in

the sum of $500.

Dated: July 22, 1985

/s/ A. Wallace Tashima

United States District Judge

I hereby certify that this document was

served by first-class mail, postage prepaid,

to all counsel (or parties) at their

respective most recent address of record

in this action on this date.

Dated: July 23, 1985

/s/ V. Beanum

Deputy Clerk

Be A he OPS

APPENDIX D

In re

Akros Installations, Inc.,

a California corporation,

Debtor.

UNITED STATES BANKRUPTCY COURT

CENTRAL DISTRICT OF CALIFORNIA

U.S.B.C. No. SB(LA)-84-14686-JA/DN

U.S.D.C. No. CV-85-566-AWT

CERTIFICATION TO DISTRICT COURT

BANKRUPTCY RULE 9020 (a) (3

REPORT AND RECOMMENDATION OF

BANKRUPTCY JUDGE RE: CONTEMPT

Filed: January 24, 1985

To the Honorable United States District

Judge to Whom this Matter is Referred:

I. Report of Bankruptcy Judge:

1. The bankruptcy judges of the

Central District of California constitute

a unit of the United States District Court

of this District known as the "bankruptcy

court.” (28 U.S.C. § 151.) A bankruptcy

judge is a judicial officer of the District

Court. (28 U.S.C. § 151.)

2. Under Bankruptcy Rule 9020(a) (3),

a bankruptcy judge may certify to the

United States District Court the

occurrence of criminal contempt when the

bankruptcy judge is without power under

28 U.S.C. § 1481 to punish or to impose

appropriate punishment for the criminal

contempt. This Report and Recommendation

constitutes such certification.

3. Section 1481 of 28 U.S.C. was

repealed by the Bankruptcy Amendments and

Federal Judgeship Act of 1984, Pub. L.

98-353, 98 Stat. 333 (Sections 113-114,

thereof, repealing, inter alia, Sections

402(b), 405(a) and 405(b) of the Bankruptcy

Reform Act of 1978, Pub. L. 95-598, 92

Stat. 2683).

4. Thus, a bankruptcy judge may only

certify the facts to a District Judge for

appropriate action instead of imposing

punishment himself.

5. The contempt in the case at bar

constituted “disrespect to or criticism

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of” the bankruptcy judge only in the sense

that the parties refused to obey orders of

the bankruptcy judge and that attorney

Andres Alonso, Jr., misrepresented at a

hearing that he would produce his clients

for depositions. Cf. Bankruptcy Rule

9020(a) (2).

6. A District Judge of the United

States District Court may punish individuals

who refuse to comply with ordersof the court

to obey subpoenas to testify or to provide

other information. See, 18 U.S.C. §§ 401,

402, 3151; 28 U.S.C. § 1826; Rules 37(b) and

45(f), F.R.Civ.P.; Rules 17(g) and 42,

F.R.Crim.P.

7. On July 17, 1984, petitioning

creditors, represented by James H. Palmer,

Esq., of the Law Offices of Edward B. Djang,

filed an involuntary Chapter 7 bankruptcy

petition against Akros Installations, Inc.,

a California corporation.

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8. The involuntary case was referred

to Bankruptcy Judge John Ayer and summons

was issued and served by mail.

9. Bankruptcy Judge Ayer resigned at

the end of August 1984; in September 1984,

the case was re-referred by its terminal

digit to Bankruptcy Judge David N. Naugle

in San Bernardino (hereinafter, "the

bankruptcy judge").

10. No timely answer was filed to

the involuntary petition; the bankruptcy

judge entered an order for relief on

September 26, 1984.

11. Also on that date, the bankruptcy

judge ordered the filing of requisite

schedules and statements by October 15,

1984.

12. Subpoenas for depositions were

issued to and duly served on Fred M.

Alexander and Linda Alexander, alleged to

be current or past officers, directors

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and/or shareholders of the corporate

involuntary debtor.

13. The Alexanders, through their

attorneys, Andres Alonso, Jr., State Bar

No. 59076, and Larry M. Hoffman, State

Bar No. 63361, have refused to appear for

depositions.

14. On November 6, 1984, the bankruptcy

judge vacated the order for relief at

request of Mr. Alonso on a showing that

the service of the summons was subject to

a technical defect.

15. Mr. Alonso has moved to have the

involuntary petition dismissed and has

appealed the bankruptcy judge's order

denying that motion.

16. The records of the Secretary of

State of California show that Fred M.

Alexander was a director and chief

executive officer of Akros Installations,

Inc., and Linda Alexander was a director

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and secretary thereof as recently as

August 1984.

17. Mr. Alonso filed an answer to

the involuntary petition on behalf of

the Debtor, Fred Alexander and Linda

Alexander on November 30, 1984.

18. Mr. Alonso represented to the

bankruptcy judge on November 6, 1984,

that the Alexanders were no longer officers

and directors of the Debtor corporation,

but refused to disclose who the officers

and directors were.

19. On November 20, 1984, the bank-

ruptcy judge heard the petitioning

creditors' motion to compel depositions,

for sanctions, contempt, etc., and found

that the refusal by the Alexanders to

appear for their depositions on advice of

their attorney, Mr. Alonso, had been

contumacious.

20. The bankruptcy judge however

gave Mr. Alonso the opportunity to cure

the failure and to expunge the contempt

by producing the Alexanders for depositions

on December 11, 1984; Mr. Alonso agreed

to do so.

21. A motion for stay pending

appeal of the order denying dismissal was

denied on December 10, 1984.

22. Fred M. Alexander and Linda

Alexander failed and refused to obey the

court's order to appear for depositions

on December ll, 1984.

23. On January 16, 1985, the bank-

ruptcy judge heard a new motion for contempt

by the petitioning creditors for the willful

failure of Fred M. Alexander and Linda

Alexander to appear for the depositions

set for December ll, 1984.

24. Larry M. Hoffman, State Bar No.

63361, appeared for the Law Offices of

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Andres Alonso, Jr., on behalf of the

Alexanders. Mr. Hoffman refused to

produce the Alexanders for depositions.

25. The District Court clerk's office

reports by telephone that Mr. Alonso was

admitted to the Bar of this District on

July 18, 1974.

26. The District Court clerk's office

reports by telephone that it has no record

of the admission of Larry M. Hoffman,

State Bar No. 6336l.

27. The range of sanctions for dis-

covery abuse and contempt available to

the bankruptcy judge is limited to com-

pensatory monetary sanctions, including

costs and attorneys fees, and/or striking

the answer and entering an order for

relief.

28. The bankruptcy judge has imposed

no punishment on the Debtor, the Alexanders,

and the two attorneys (Mr. Alonso and Mr.

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Hoffman) although all of the individuals

have been found in contempt for failure

to obey the subpoenas to appear, for

violation of the bankruptcy judge's order

in open court to Mr. Alonso to produce the

Alexanders for depositions on December hs

1984 (to which Mr. Alonso agreed), and for

continuing obstreperous and recalcitrant

refusal to appear for depositions.

29. Concealment or transfer of assets

in a bankruptcy case context can be a

crime (18 U.S.C. § 152).

II. Recommendations of Bankruptcy Judge

A. That Fred Alexander and Linda

Alexander be summarily ordered confined

at a suitable place until such time as

they are willing to give testimony and

provide information.

B. That Andres Alonso, Jr., a

member of the Bar of this Court, be

punished by an appropriate fine and/or

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a

imprisonment and be considered for disbar-

ment or suspension for misconduct.

C. That Larry M. Hoffman, who appears

not to be a member of the Bar of this Court,

be punished by an appropriate fine for his

conduct, be required to prove his membership

in this Court's Bar prior to his first

appearance in this case (December 10, 1984),

failing which he should be required to pay

his membership fee and an appropriate fine

for unauthorized appearance.

D. That the District Judge impose

appropriate monetary or other sanctions

in favor of the petitioning creditors and

their attorney, including attorneys fees

and striking of the answer to the

involuntary petition and entry of an order

for relief, or return this aspect of the

matter to the bankruptcy judge with

directions to take no action, discretionary

action, or directed action in regards

thereto.

Respectfully certified this

18th day of January 1985:

/s/ David N. Naugle

Bankruptcy Judge