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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 818

## Text

~ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1935%3A1. Public record. Not legal advice.