Petition for Writ of Certiorari — Kozel v. United States

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9@-1 080 Supreme Court, 4.5.

FILED

DEC 18 WOO

NO. JOSEPH! F. SPANIOL, JR.

CLERK

UNITED STATES SUPREME

OCTOBER 1990 TERM

UNITED STATES OF AMERICA,) WRIT OF CERTIORARI

) FROM THE UNITED

RESPONDENT,) STATES COURT OF

APPEALS FOR THE

Vv. SEVENTH CIRCUIT

)

KENNETH A. KOZEL, )

)

PETITIONER.

PETITION FOR WRIT OF CERTIORARI

KENNETH A. KOZEL

ATTORNEY PRO SE

801 SECOND STREET

LA SALLE, IL 61301

PHONE: (815) 223-4400

¥O

(a) QUESTIONS FOR REVIEW

1. Whether an attorney who faced 18

months in jail as a result of a conviction

for criminal contempt of court, was entitled

to a trial by jury pursuant to the recent

enactment of 18 U.S.C. 19 and the repeal of

18 U.S.C. 1(3).

2. Whether the sentence imposed on an

attorney of the payment of $600.00 plus the

performance of 5 criminal cases pro bono as

a result of a conviction for criminal contempt

of court, exceeded the maximum sentence of a

$5,000.00: fine’ authorized by 18 U.S.C. 19 and

thereby violated the attorney's right to a

trial by jury.

3. Whether an attorney who received a

permanent blot on his license to practice law

and loss of his professional reputation as a

result of a conviction for criminal contempt

of court, was entitled to a trial by jury.

4. Whether a local rule of a United

States District Court, which is not definite

Or specific, can be the basis of a conviction

for criminal contempt of court.

5. Whether a defendant attorney can be

found guilty of criminal contempt of court

for failure to appear at a hearing on a rule

to show cause at which the vresiding judge

disqualifies himself.

6. Whether a criminal prosecution

utilizing witness transcripts rather than

live witnesses violates one's right to con-

front witnesses.

7. Whether the refusal of the trial

judge to allow a defendant to call a qovern-

ment employee. sitting in the courtroom as a

witness violated the right to confront wit-

nesses.

8. Whether a conviction for criminal

contempt requires findings of willfulness

and guilt beyond a reasonable doubt.

9. Whether a speedy trial was improperly

denied.

(b) LIST OF PARTIES

Kenneth A. Kozel, Petitioner

United States of America, Respondent

Questions Presented for Review

List of Parties

Reference to Opinion

Jurisdiction of this Court

Constitutional Provisions,

Statutes and Local Rules

Involved

Statement of the Case

Basis of Federal Jurisdiction

Argument

(1)

{2)

An attorney who faced

18 months in jail as a

result of a conviction

for criminal contempt

of court, was entitled

to a trial by jury pur-

suant to 18 U.S.C. 19

and the repeal

of 18 U.S.C. 1(3).

A sentence of $600.00

plus the performance of

5 criminal cases pro

bono as a result of a

conviction for criminal

contempt of court ex-

ceeded the maximum sen-

tence of a $5,000.00

fine authorized by 18

U.S.C. 19, and thereby

violated an attorney's

right to a trial by

jury.

(3)

(4)

(5)

(6)

(7)

(8)

(9)

who

An attorney/received a per-

manent blot on his license

to practice law and loss of

his professional reputation

as a result of a conviction

for criminal contempt of

court, was entitled to a

trial by jury.

A local rule of a United

States District Court, which

is not definite or specific,

cannot be the basis of a

conviction for criminal con-

tempt of court.

A defendant attorney cannot

be found guilty of criminal

contempt of court for fail-

ing to appear at a hearing

on a rule to show cause at

which the presiding judge

disqualifies himself.

A criminal prosecution

using witness transcripts

rather than live witnesses

violates one's right to

confront witnesses.

The refusal of a trial

judge to allow a defendant

to call a government

employee sitting in the

courtroom as a witness

violated the right to con-

front witnesses.

A criminal contempt conviction

requires findings of willful-

ness and guilt beyond a

reasonable doubt.

The right to a speedy trial

was improperly denied.

TABLE OF AUTHORITIES

Bloom v. Illinois,

391 U.S. 194 (1968) .

Brady v. Blair,

427 F. Supp. 5 (1976)

California v. Green,

Cheff v. Schnackenberg,

Codispote v.

384 U.S. 373 (1966) .

Pennsylvania,

318 U.S. 506 (1974) ..

Coy v. Iowa,

108 S.Ct. 2798 ....

Dutton v. Evans,

400 U.S. 74 (1970) . .

Falstaff Brewing Corp. v. Miller

Brewing Co., 702 F. 2d 720

(CA, Cal, 1983) e . *

Re Betts,

730 F. Supp. 942 (C.D.

Re Stewart,

571 F. 2d 958 (CA, Miss,

Re Williams,

509 F. 2d 949 (1975) .

Re Winship,

397 U.S. 358 (1970) . ~~ « «© «

Til.

1990)

1978) .

PAGE

142,44

. 29

_ se

—

- 26

. &

- 39

40,41

. @

-40,41

42,44

Lee v. Williams,

90 L. Ed. 20 514 (A86) ....-

Marrese v. Am. Academy of Ortho.

surgeons: 726 F. 2d 1150

7 Circ. 1984) o ” + o a - o

Maynard v. Cartwright,

466 U.S. 350 (1908). « « © © «

Muniz v. Hoffman,

422 U.S. 454 (1975). .....

Ohio v. Roberts,

448 U.S. 56. (1980) ...°.

Richter v. Fairbanks,

903 F. 2d 1202 (8th Cir. 1990)

U.S. v. Craner,

652 F. 2d 23 (9th Cir. 1981) .

U.S. v. Inadi,

475 U.S. 387 (1986) 7 . 7 . .

U.S. v. Joyce

498 F. 2d 592 (7th Cir. 1974)

U.S. v. McAlister,

630 F.. 2d 772 (10th Cir. 1980)

U.S. v. Peterson,

456 F.. 2m aaam (1972) . « « «

U.S. v. Professional Air Traffic

Controllers, 678 F. 2d l

(lst. it 1980) e . + . . - 7

. 39

. 21

. 34

. 21

. 39

. 29

° 29

. 39

-33,36,42

. 30

. 39

42,44

U.S. v. Rylander,

714 F. 2d 996, 1006 (1983) ..... 21

U.S. v. Twentieth Century Fox Corp.,

882 F. 2d 656 (2d Cir. 1989) .... 35,42

i? = Ve Wood,

450 F. Supp. 1335 (1978) ...... 29

18 WeMctec 1 (3) + 7 . . . . . 7 7 . . e 20-26

18 U.S.C. 19 e ° 7 o . ee e . . . . ee e . 20-26

28 U.8.C. 3S7i tb) (6) amd (7). . « « « « 90,288

Pub. L. 984; 473 Title 1l, 218(a) (1),

oe @emes SUer s ew 6 wm ee eee 20

Illinois Supreme Court Rule 76l. .. . 27

U.S. Constitution,

Art. III, Sec. 2; Sixth Amendment . 24,39

Central District of Illinois,

Lecei BOAS 216) «© «© «© © © © sw ww 30

Eastern District of Wisconsin,

bO@OBL MbAe 2eGh + & © © 6 ew ee 8 11,31

Northern District of Illinois

Leeei Bee 3chO sw ee ee © oO 11,31

Northern District of Indiana

becei Buse 2G) .« «© «© © © we 8 ee 13 «3a

Southern District of Illinois

GS eee

Southern District of Indiana

a ee ee eee a

Western District of Wisconsin. ....

(d) REFERENCE TO OPINION

United States of America v.

Kenneth A. Kozel,

908 F. 2d 205

(7th Cir. 1990)

(e) JURISDICTION OF THIS COURT

(i) The judgment sought to be

reviewed is dated and was

entered July 26, 1990.

(ii) An order denying a petition

for rehearing is dated and

was entered September 11,

1990. The time to file a

Petition for writ of

certiorari was extended to

and including December 20,

1990, by Justice Stevens

(A-415).

(iii) Jurisdiction to review the

judgment of the United

States Court of Appeals for

the Seventh Circuit is con-

ferred by 28 U.S.C. 1254.

{£) CONSTITUTIONAL PROVISIONS, STATUTES,

AND LOCAL RULES

Article III, Section II,

U.S. Constitution

The trial of all Crimes, except

in cases of impeachment,

shall be by jury...

18 U.S.C. 1(3) (REPEALED)

‘Any misdemeanor, the penalty

for which, as set forth in the

provision defining the offense,

does not exceed imprisonment

for a period of six months or a

fine of not more than $5,000

for an individual and $10,000

for a person other than an

individual, or both is a petty

offense. (REPEALED)

18 U.S.C. 19

As used in this title, the term

“petty offense" means a Class B

misdemeanor, a Class C mis-

demeanor, or an infraction, for

the maximum fine is no greater

than the amount set forth for

such an offense in section 3571

(b) (6) or (7) in the case of an

individual or section 3571(6) or

(7) in the case of an organiza-

tion.

Illinois Supreme Court Rule 761

Conviction of a ‘rime.

(a) Notification. It is the duty~

of an attorney admitted in this

State who is convicted in any

court of a felony or misdemeanor

to notify the Administrator of the

conviction in writing within 30

days of the entry of judgment of

conviction...

(f) Proof of Conviction. In any

hearing conducted pursuant to this

rule, proof of conviction is con-

clusive of the attorney's guilt

of the crime.

Central District of Illinois

Local Rule l(e):

Any person who, before his ad-

mission to the bar of this court

or during his suspension or dis-

barment therefrom, exercises in

this district any of the privi-

leges of a member of said bar in

any action or proceeding pend-

ing in this court, or who pre-

tends to be able to do so, may be

adjudged guilty of contempt of

court.

Northern District of Illinois

Local Rule 3.10A;:

Who may appear. Except as other-

wise provided in General Rules 3.11

and 3.112 and as otherwise provided

in this Rule, only members in good

standing of the bar of this Court

may enter appearance of parties,

file pleadings, motions or other

documents, sign stipulations or re-

ceive payments upon judgements for

decrees or orders.

Southern District of Illinois

Local Rule 1(d):

(d.) Representation in cases. In

all cases filed in, or removed to, or

transferred to this Court, all

parties, except government agencies

or those appearing pro se must be

represented of record by a member of

the bar of this Court.

Northern District of Indiana

Local Rule l(c):

No person shall be permitted to

practice generally in this court or

before any officer thereof as an

attorney, except in his own behalf

when a party unless he has been ad-

mitted to practice by this court;

provided however, that an Attorney

admitted to practice in any other

United States Court or the highest

court of anv state may, on applica-

tion, to this court be granted leave

to appear in any specific action.

Southern District of Indiana

Local Rule 1(d):

In all cases filed in, removed

to, or transferred to this court,

all parties, except government

agencies, or those appearing pro se,

must be represented of record by a

member of the bar of this court.

Eastern District of Wisconsin

Local Rule 2.01:

Manner of Appearance. All parties

to actions filed in or removed to this

court must appear either pro se or by

an attorney admitted to practice in

this court.

Western District of Wisconsin

Has no local rule requiring that an

attorney be admitted to the bar be-

fore appearing in court on behalf of

a party.

(g) STATEMENT OF THE CASE

On July 20, 1987, John Betts filed a

civil rights action pro se in the Danville

Division of the United States District Court

for the Central District of Illinois, claim-

ing that the City of Paxton, Illinois, mem-

bers of its police department and others un-

justly restrained him and caused him to fear

for his safety and that of his wife and chil-

dren. Betts was unable to appear for a

motion hearing in the case on May 12, 1988,

in Danville because he had to appear at a

sentencing hearing that same day in Ottawa,

Illinois, in the case of People of the State

of Illinois v. Roger Sampson, No. 87-CF-265.

Sampson was awaiting sentencing on a guilty

finding of aggravated criminal sexual assault

for which he subsequently was sentenced to 45

years in the Illinois Department of Correc-

tions.

The petitioner herein, Kenneth A. Kozel,

also an attorney, appeared on Betts' behalf a

the hearing in Danville on May 12, 1988, on

various motions to dismiss. The presiding

judge, Judge Baker, dismissed Betts' civil

rights complaint but allowed Betts an opportu:

nity to file an amended complaint. Before th

time expired for Betts to replead, a settle-

ment was reached between Betts and the City

of Paxton, Illinois and was entered by the

court. Five months after the case had been

dismissed and no further action taken by any

of the parties. Attorney Lanto, an attorney

for defendants in the case other than the

City of Paxton, filed a motion alleging that

the petitioner, Kenneth A. Kozel, was not ad-

mitted to the bar of the United States Dis-

trict Court for the Central District of

Illinois.

On the way to a subsequent hearing in

the civil ghanee cone on January 20, 1989,

Kozel was delayed about one hour due to con-

struction of a new interstate highway, I-39,

just north of existing Interstate 55. Short-

ly before 2:00 p.m. Kozel telephoned Judge

Baker's chambers to inform the court he would

be late for the 2:00 p.m. hearing. The per-

son who answered the telephone said to not

worry because Judge Baker was still hearing a

matter that had begun that morning, U.S. v.

Whitely 88-20046. Attorney Lanto, who testi-

fied for the government at Kozel's bench

trial confirmed that Judge Baker went beyond

2 p.m. and called the Betts case at 2:40 p.m.

Kozel appeared at about 2:50 p.m., but by

this time Judge Baker had already entered

aa i

orders in the case in favor of Attorney Lanto

and had left the bench. Attorney Lanto admit-

ted at Kozel's trial that Lanto knew Judge

Baker before Baker became a federal judge and

that Attorney Lanto had appeared before Judge

Baker some 75 to 100 times.

After arriving at the courthouse in

Danville on January 20, 1989, Kozel attempted

to file a motion to dismiss but the clerk re-

fused to allow the filing. Instead the clerk

informed Kozel he should go to Judge Baker's

courtroom to file his papers. Kozel went to

the courtroom, took a seat in the spectator

section and waited his turn. The courtroom

was unusually crowded with news media and

other people who were interested in another

case. Judge Baker then came back on the

bench and recalled the Betts case. Kozel

stated to the judge he had a motion to dis-

m.ss that he would like to file. Kozel heard

Judge Baker remark in a matter of fact tone

that Kozel was late and that he could file

anything he wanted. Judae Baker then called

the next case.

The entire text of Judge Baker's com-

ments as reported by the court reporter were

allegedly as follows:

THE COURT: You file whatever you

want, Mr. Kozel. We are late. I have

entered orders... Ihave ruled you to

show cause why you shouldn't be held

in contempt, and you are to appear on

that rule February 9th at 1:30.

Kozel was unable to hear all of Judge

Baker's remarks because he was so far away

from the bench as a result of the presence of

other attorneys at the counsel tables. The

court did not pick up all of Kozel's state-

ments as appears from her transcript.

Judge Baker did not prepare an order to

show cause until three days later. Judge Mihm

of the Peoria Division of the United States

District Court for the Central District vaca-

ted that order at a later date. Kozel never

was served with a rule to show cause. Kozel

was never informed of what the nature of any

alleged rule might have been. Judge Baker

did not testify at the trial so there is

nothing in the record as to what the above

comments exactly meant.

The docket sheet entry for January 20,

1989, in the civil rights case provided that

the clerk was to serve Kozel by certified

mail with a rule to show cause why Kozel

should not be held in contempt of court for

appearing before Judge Baker without being

admitted to the bar of the Central District.

A minute order entered three days later on

January 23, 1989, incorporated the rule to

show cause. The docket sheet further indi-

cates that the rule was sent by certified

mail but was never received by Kozel. The

file fails to contain a signed receipt for

certified mail. The certified mail was sub-

sequently returned to the Clerk's office un-

delivered.

On February 9, 1989, the return day for

the rule to show cause, the United States At-

torney and Attorney Lanto were present before

Judge Baker in Danville. Kozel was not pre-

sent. Judge Baker disqualified himself be-

cause he was the complaining witness against

Kozel and the matter was then assigned to

Judge Mihm in Peoria for further hearing.

On February 22, 1989, the United States

Attorney filed an information and petition

for Criminal Contempt Order against Kozel

alleging (1) that Kozel appeared before Judge

Baker on May 12, 1988 and January 20, 1989,

without having been admitted to the Bar of

the Central District in violation of Local

Rule l(e); (2) appeared 40 minutes late on

January 20, 1989; and (3) failed to appear

before Judge Baker on February 9, 1989, in

respect of the rule to show cause. On July il,

1989, Judge Mihm vacated the minute order

entered by Judge Baker on January 23, 1989,

which had incorporated the rule to show cause

and ordered Kozel to appear on February 9,

1989.

Kozel demanded a trial by jury but the

demand was denied since the government had

elected to be bound by sentences not to ex-

ceed 6 months on each of the three charges.

The government subsequently dropped the

charge that Kozel was not admitted to the bar

of the Central District on January 20, 1989.

A second search of the clerk's records on

March 10, 1989, disclosed Kozel's readmission

on January 19, 1989 (See Appendix, page 28)

Kozel was subsequently tried by bench

trial. He testified that he had been admit-

ted to the bar of the Central District and

that the Clerk;s Office had misplaced his oath

card and that there was no security in the

keeping of the records. He further testified

that he re-applied for admission, on the ad-

vice of his attorney and the clerk's staff,

in the event that he might have to return to

Danville on Bett's behalf in the civil rights

case. An initial search of the clerk's re-

cords on February 15, 1989 failed to reveal

that Kozel had been readmitted on January 19,

1989. (See Appendix, page 27).

Kozel was acquitted of the charge of

appearing 40 minutes late but was found

guilty of criminal contempt of court for ap-

pearing in court on May 12, 1988, without

being admitted to the Bar of the Central Dis-

trict. He was also found guilty of criminal

contempt of court for not appearing before

Judge Baker on February 9, 1989, when Judge

Baker disqualified himself from the case.

Kozel was sentenced to pay $600.00 and

perform 5 criminal cases pro bono.

The United States District Court for

the Central District had jurisdiction to hear

the case pursuant to Title 18 of the United

States Code.

The Seventh Circuit Court of Appeals

had jurisdiction to review the decision of

the United States District Court pursuant to

28 U.S.C. 1291.

ARGUMENT

(1) An attorney who faced 18

18 months in jail as a result of a

conviction for criminal contempt of

court was entitled to a trial by

jury pursuant to 18 U.S.C. 19 and

the repeal of 18 U.S.C. 1(3).

The government sought a possible jail

sentence of not less than 6 months for each

of the three charges against Kozel. The

government relied on prior case law which in

insane el

turn relied on 18 U.S.C. 1(3) which was sub-

sequently repealed (Pub. L. 984; 473 Title II,

sec. 218(a)(1), October 12, 1984, 98 Stat.

2027).

Prior to its repeal, 18 U.S.C. 1(3) pro-

vided:

Any misdemeanor, the penalty

for which, as set forth in the

provision defining the offense,

does not exceed imprisonment

for a period of six months or a

fine of not more than $5,000.00

for an individual and $10,000.00

for a person other than an in-

dividual, or both is a petty

offense.

Following the repeal of 18 U.S.C. 1(3),

the newly enacted 18 U.S.C. 19, effective

November 1987, provides:

As used in this title, the term

"petty offense" means a Class B

misdemeanor, a Class C mis-

demeanor, or an infraction, for

which the maximum fine is no

greater than the amount set

forth for such an offense in

section 3571(b) (6) or (7) in

the case of an individual or

section 3571(6) or (7) in the

case of an organization.

18 U.S.C. 3571(b) (6) and (7) disclose

that the only sentence imposed is a fine

which cannot exceed $5,000.00. No provision

is made for jail time.

The government and the Seventh Circuit

Court of Appeals relied on a long line of

cases which relied on 18 U.S.C. 1(3) and which

have been effectively abrogated by the repeal

of 18 U.S.C. 1(3). Duncan v. Louisiana, 391

U.S. 145 (1968); District of Columbia v.

Clawans, 300 U.S. 617 (1937); Callan v.

Wilson, 127 U.S. 540 (1888); Muniz v. Hoffman,

422 U.S. 454 (1975); Taylor v. Hayes, 418 U.S.

488 (1974); Frank v. United States, 395 U.S.

147 (1969); Bloom v. Illinois, 391 U.S. 194

(1968); Cheff v. Schnackenberg, 384 U.S. 373

(1966); U.S. v. Rylander, 714 F. 2d 996 (1983);

Marrese v. Am. Academy of Ortho. Surgeons,

726 F. 2d 1150 (7th Cir. 1984); Blanton v.

City of North Las Vegas, 109 S. Ct. 1289

(1989).

18 U.S.C. 19 abolishes prison sentences

for petty offenses. Since Kozel faced a jail

term of 18 months for the three charges, the

charges were not petty offenses as the gov-

ernment and the court had maintained. On the

’

contrary, the three charges were "serious"

offenses, that is, offenses for which prison

terms might be imposed. Therefore, Kozel

was improperly denied his right to a trial by

jury.

In its opinion, the Seventh Circuit

Court of Appeals states that the purpose of

newly enacted 18 U.S.C. 19 is to limit the

possible jail time for petty offenses to six

months in jail and to put a cap on the maxi-

mum fine at $5,000 (Op., page 4). The court

supplies no reasoning for this rationale and

instead cites cases interpreting 18 U.S.C.

1(3) which has been repealed.

If the only purpose of 18 U.S.C. 19 was

to limit the time that a defendant could be

incarcerated to six months and put a cap of

$5,000.00 on the fine that could be imposed,

then there would not have been any need for

enactment of 18 U.S.C. 19 in the first place.

The prior section, 18 U.S.C. 1(3) provided

for these same penalties.

If one looks at the cases that have been

errr

appealed involving crimine1l contempt, it be-

comes clear that much of the litigation in-

volves the question of whether or not a jury

should have been provided the defendant.

Congress finally did the rational thing and

enacted legislation that resolved this ques-

tion. Congress enacted 18 U.S.C. 19 which

says that a petty offense is one that pro-

vides for a fine only and does not have jail

in the picture. Ifa defendant is not sub-

ject to jail, then he is not entitled to

trial by jury. Actually this is one of the

more reasonable things that Congress has done

in the way of corrective legislation. Re-

moving the issue of entitlement to a jury

trial by removing the possibility of a jail

sentence makes good sense. In fact, the ac-

tion of the Congress will decrease the number

of appeals when defendants find they are only

faced with a fine rather than incarceration.

The reasoning expressed in the opinion

of the Seventh Circuit Court of appeals con-

fuses the definition of a petty offense. The

———S ee

Court concludes that since 18 U.S.C. 19 re-

fers to Class B and C misdemeanors and 18

U.S.C. 3581 authorizes a jail sentence for a

misdemeanor, then jail sentences can also be

imposed for petty offenses. Nothing could be

more incorrect. A petty offense is a parti-

cular type of Class B or C misdemeanor or in-

fraction for which a jail sentence cannot be

imposed.

When Kozel faced 18 months in jail, the

alleged "petty offenses" were actually "seri-

ous" offenses which required that he be af-

forded his Sixth Amendment right to a trial by

jury.

This is a case of first impression in

which the result is directly contrary to the

plain meaning of a recent Congressional enact-

ment and will affect all future prosecutions

of alleged "petty offenses" carrying a pos-

sible jail sentence. The Seventh Circuit

Court of Appeals has sanctioned such a depar-

ture by the lower court from the accepted and

usual course of judicial proceedings as to

call for an exercise of this Court's power of

supervision.

(2) A sentence of $600.00 plus

the performance of 5 criminal cases

pro bono as a result of a conviction

for criminal contempt of court exceeded

the maximum sentence of a $5,000.00

fine authorized by 18 U.S.C. 19 and

thereby violated an attorney's right

to a trial by jury.

Kozel was sentenced to pay $600.00 and

verform five criminal cases pro bono. The

value of an attorney's performance of five

criminal cases added to the $600.00 exceeds

the sum of $5,000.00, the maximum fine pur-

suant to 18 U.S.C. 19 and 18 U.S.C. 3571(b) (6)

and (7). Since the penalty imposed exceeded

that allowed for a petty offense, the charges

against Kozel were "serious" and he should

have been allowed a trial by jury. The trial

court had no right to surreptitiously impose

a sentence of “community service" as a means

of increasing the amount of the fine beyond

the maximum allowed by law.

Sentencing someone to perform services

related to his profession is not community

service. Community service is contributing a

certain number of off work hours to the public

good, hours which are unrelated to one's pro-

fession. There is a big difference between

sentencing one to contribute time that one use

to make a living as opposed to contributing

what has been referred to as free time. Sen-

tencing one to contribute the time one uses

to support himself or his family is a defacto

fine, or in other words, a fine in kind. The

Seventh Circuit's opinion states that

Codispoti v. Pennsylvania, 418 U.S. 506 (1974)

is “arguably relevant". Codispoti is not rel-

evant for two reasons. First, Codispoti is

is interpreting 18 U.S.C. 1(3) which has been

repealed. Second, as Justice Marshall notes

in his concurring opinion, the contempt in the

case took place in open court before the judge.

As a result, there were no facts to be deter-

mined by a jury. For that reason, the right

to a jury trial was denied. None of the fac-

tual allegations in Kozel's case involved ac-

tions occurring in the courtroom. Therefore,

the facts in Kozel's case should have been

determined by a jury.

(3) An attorney who received a

permanent blot on his license to

practice law ane loss of his profes-

Sional reputation as a result of a

conviction for criminal contempt of

court, was entitled to a trial by

ury.

At the sentencing hearing in this case,

the trial judge stated:

Now we have to note too that

Mr. Kozel, you now have two Class B

misdemeanors. That is a punishment

to an attorney to have those federal

misdemeanors on his record. In the

normal course of events I doubt if

that would amount to a role of pins.

But should anything take place in the

future that calls question to your

conduct or to your abilities, perhaps

this will have an effect, I don't know.

But as lawyers I think that we would

all acknowledge that this is a punish-

ment to have them.

In addition to the above, Illinois

Supreme Court Rule 761 (Conviction of a Crime)

provides:

(a)Notification. It is the duty of

an attorney admitted in this State

who is convicted in any court of a

felony or misdemeanor to notify

the Administrator of the convic-

tion in writing within 30 days of

the entry of judqment of convic-

Sion...

(f£)Proof of Conviction. [In any hear-

F PECT AVAILARLE COPY

ing conducted pursuant to this

rule, proof of conviction is con-

clusive of the attorney's guilt of

the crime.

‘

Before sentencing and the entry of judg-

ment by the trial court, the Assistant U.S.

Attorney initiated a complaint about Kozel

with the Attorney Registration and Discipli-

nary Commission. (Appendix, page 25).

The distinction between a petty offense

and a serious offense lies in the objective

indications of the seriousness with which so-

ciety regards the offense. Blanton v. City of

North Las Vegas, 489 U.S. 538 (1989). In this

case we have the trial judge stating that it

is a punishment to an attorney to have federal

misdemeanor convictions on his record. Fur-

thermore, the Illinois Supreme Court has stat-

ed through its disciplinary Rule 761 that

Kozel is conclusively guilty of a crime simply

as a result of being convicted. Kozel has had

a complaint filed against him by the Assistant

U.S. Attorney who prosecuted him (Appendix,

page 25).

ST AVAILABLE COP

In the recent case of Richtor v.Fairbanks

903 F. 2d 1202 (8th Cir. 1990), the Eighth

Circuit took an approach opposite to the

Seventh Circuit Court of Appeals and held that

a defendant facing revocation of his driver's

license was entitled to a jury trial. See

also the opinion of the Ninth Circtit in U.S.

v. Craner, 652 F. 2d 23 (9th Cir. 1981); Brady

v. Blair, 427 F. Supp. 5 (1976) and U.S. v.

Wood, 450 F. Supp. 1335 (1978) all in agree-

ment the Eighth Circuit and contrary to the

Seventh Circuit.

Kozel has been and will be seriously af-

fected in his professional life as an attorney

as a result of his criminal convictions. If

a potential loss of driving privileges merits

a jury trial, then surely so does potential

loss of the right to practice law and other

adverse professional consequences.

The opinion of tiie Seventh Circuit Court

of Appeals states that there is no right to a

jury trial just because disciplinary proceed-

ings flow from a conviction - “otherwise

every successful criminal contempt charge filed

against a lawyer in Illinois would require a

jury on demand. No authority or statistics on

the number of attorneys facing criminal con-

tempt are provided to justify the court's con-

clusion.

The Seventh Circuit relies heavily on

Muniz v. Hoffman, 422 U.S. 454 (1975). But it

has been held that Muniz does not apply in a

criminal contempt action against an individ-

ual. (See U.S. v. McAllister, 630 F. 2d 772

(lOth Cir. 1980).

(4) A local rule of a United

States District Court, which is not

a definite or specific, cannot be

the pasis of a conviction for crim-

inal contempt.

Kozel was convicted of criminal contempt

of court for appearing in court in the United

States District Court for the Central Dis-

trict on behalf of a party allegedly without

being admitted pursuant to Local Rule l(e)

which provides:

Any person who, before his

admission to the bar of this

court or during his suspension

or disbarment therefrom, exer-

cises in this district any of

any of the privileges of a mem-

ber of said bar in any action

Or proceeding pending in this

court, or who pretends to be able

to do so, may be adjudged guilty

of contempt of court.

Nowhere in Local Rule l(e) is the word

"privileges" defined. Nowhere in Local Rule

l(e) does it szy that one will be held in

criminal as opposed to civil contempt of

court for appearing in court on behalf of a

client.

In an earlier opinion, the trial judge

admitted that Local Rule l(e) is ambiguous:

--eThis question has not arisen

before--no case before this

Court has ever before concerned

this apparent ambiguity in our

rules. (See Appendix, page 23).

The local rules of all of the various

United States District Courts within the

jurisdiction of the Seventh Circuit Court of

Appeals have been set forth above with the

exception of the Western District of Wiscon-

sin, which has no local rule on the admis-

sion of attorneys to the bar of the court.

All other District Courts have a rule which

definitely and specifically states that an

attorney must be a member of the bar of that

particular District Court before appearing in

court on behalf of a party. In spite of the

above rules, it appears that the Chief Judge

of the Northern District in Chicago disap -

proves of criminal prosecutions for appear-

ing in court on behalf of a party without be-

ing admitted to the bar of the Northern Dis-

trict. (See Appendix, pages 29-31). In any

event, the Central District of Illinois had

no rule similar to the other districts which

definitely and specifically stated that an at-

torney must be admitted to the bar of the Dis-

trict Court before appearing in court on be-

half of a party.

After Kozel's case was concluded in the

trial court, the Central District enacted a

standing order of the court, Standing Order

35, that states an attorney must be a member

of the Central District Bar before appearing

on behalf of a criminal defendant. No doubt

a Similar rule applicable to civil cases will

not be enacted until this appeal has been de-

cided and the mandate returned to the Central

District Court. If Local Rule l(e) said what

the trial court thought it said, what reason

would there be to enact Standing Order 35?

The fact is that Local Rule l(e) fails to

specifically and definitely require an attor-

ney to be a member of the Central District

Bar before representing a party in court.

Without the existence of an order con-

taining terms which are clear and specific and

which leave no doubt or uncertainty in the

minds of those to whom it is addressed, Kozel

cannot be found to be in criminal contempt

in the Central District. United States v.

Joyce, 498 F. 2d 592, 596 (7th Circuit, 1974).

While one might speculate that appear-

ing in court on behalf of clients might be a

privilege of membership in the Central Dis-

trict Bar, such speculation will not support

a prosecution for criminal contempt. What

the underlying courts did in this case was

supply an order where no order exists that

says that an attorney must be a member of the

Bar before appearing on behalf of clients.

The Seventh Circuit relied on Maynard v.

Cartwright, 486 U.S. 356 (1988) and no other

authority to support its comment that a rea-

sonable person would have known that appearing

in court without having joined the bar was

conduct covered and prohibited by Local Rule

1(e). But this is not what Maynard v. Cart-

wright says. Maynard v. Cartwright's one-

sentence discussion of the due process ap-

proach to vagueness was dicta in that case.

Maynard v. Cartwright directed its attention

not to the due process clause but to analyzing

claims of vagueness directed at aggravating

circumstances defined in capital punishment

statutes from the standpoint of the Eighth

Amendment.

Contrary to the Seventh Circuit's opin-

ion, there was no way for any person to know

that appearing in court on behalf of a party

in the Central District, without being

admitted to the Bar, constituted criminal con-

tempt of court punishable by fine or imprison-

ment.

On page 6 of its opinion, the Seventh

Circuit cites the case of U.S. v. Twentieth

Century Fox Film Corp., 882 F. 2d 565, 659

(2a Cir. 1989) for the proposition that "sanc-

tions for criminal contempt depend on proof of

a willful violation of a lawful, definite and

specific court order. The case of U.S. v.

Joyce, 498 F. 2d 592, 596 (7th Circ. 1974)

stands for the same proposition, i.e., that a

person cannot be found guilty of criminal con-

tempt of court unless the order allegedly

violated is clear and specific and its terms

leave no doubt or uncertainty.

The Seventh Circuit then proceeded to di-

gress from the above correct statement of the

law. On page 6 the court states:

--e-if any "privilege" is

sensibly reserved to mem-

bers of the bar, then appear-

ing on behalf of a party in a

pending proceeding clearly is,

and Local Rule 1(E) establishes

at least that much...

This is where the Seventh Circuit blurs

the requirement of the law that criminal con-

tempt can result only from the violation of a

definite and specific order. Local Rule l(e)

absolutely does not “establish that appear-

ing on behalf of a party in a pending proceed-

ing is a privilege reserved to members of the

bar." Rule l(e) does not say anything at all

like this. Nowhere does Local Rule l(e) even

define the word “privilege”. {Lf one has to

guess what privileges there are, he certainly

cannot be held in criminal contempt. U.S. v.

Joyce says that the order itself must be

definite and specific in order to charge

criminal contempt. When we start to read into

the rule and say things like "a reasonable

person would have known", then we are clearly

outside the parameters of criminal contempt.

Local Rule l(e) simply fails to say the spe-

cific and definite magic words that a person

will in fact be charged with criminal contempt

of court if he appears in court on behalf of

a party without being admitted to the bar.

Who is it that determined that criminal con-

tempt rather than civil could be charged under

Local Rule l(e). Local Rule l(e) is silent as

to whether civil or criminal contempt is at

issue.

The Seventh Circuit states on page 6 that

"Kozel had notice when he entered his appear-

ance and the district court distinctly asked

whether or not he was a member of the bar."

The district court ouepiios ae more notice

than Local Rule lfe). Nowhere in the trans-

cript does the district court tell Kozel that

he would be held in criminal contempt of court

if he appeared in court on behalf of a party

before having been admitted to the Central

District Bar. Neither Local Rule l(e) nor the

question posed to Kozel by the district court

satisfied the requirement that a definite and

specific court order precede a finding of

criminal contempt.

(5) A defendant cannot be

found guilty of criminal contempt

for failing to appear at a hearing

on a rule to show cause at which

the presiding judge disqualifies himself.

Kozel was found guilty of failing to ap-

pear on February 9, 1989, (as directed on

January 20, 1989) to show cause why he should

not be held in contempt. The government in-

troduced over objection a minute order en-

tered January 23, 1989 by Judge Baker which

ordered that Kozel appear on February 9, 1989

to show cause why he should not be held in

contempt. The above minute order. dated

January 23, 1989, was mailed to Kozel by

certified mail but was never received and was

returned to the clerk of the court. The above

minute order dated January 23, 1989, was

vacated by Judge Mihm after Judge Mihm found

that Kozel had been denied due process of law

(Appendix, page 26).

On February 9, 1989, in Danville, Judge

Baker disqualified himself and assigned the

case to Judge Mihm in Peoria. Nevertheless,

Kozel was convicted of criminal contempt of

court for not being present in court that day

in Danville. Since Kozel's conduct in not

being present on February 9,'1989, in Danville

did not delay the administration of justice,

his conviction for criminal contempt of court

cannot stand. In re Williams, 509 F. 2d 949

(1975); U.S. v. Peterson, 456 F. 2d 1135

(1972).

(6) A criminal prosecution

using witness transcripts rather

than live witnesses violates one's

right to confront witnesses.

The government used a writing by the

Clerk of the Court and a transcript of cer-

tain remarks of Judge Baker to sustain its

prosecution. Neither the Clerk nor Judge

Baker was called as a witness in the case.

Judge Baker was the complaining witness. The

defendant had the right to confront and cross-

examine both Judge Baker and Clerk of the

court pursuant to the Sixth Amendment of the

United States Constitution. Coy-+v. Iowa, 108

S. Ct. 2798; U.S. v. Inadi, 475 U.S. 387

(1986); California v. Green, 399 U.S. 149

(1970); Dutton v. Evans, 400 U.S. 74 (1970);

Ohio v. Roberts, 448 U.S. 56 (1980);Lee v.

Williams, 90 L.Ed. 2d 514 (1986).

If the positions of the lower courts are

adopted by this court, it would never be nec-

essary to have witnesses testify for the

government. The government could simply

introduce grand jury transcripts and never

present any witnesses in its case in chief.

The burden of proof is on the government to

prove a defendant guilty beyond a reasonable

doubt. In Re Stewart, 571 F. 2d 958 (1978);

Falstaff Brewing Corp. v. Miller Brewing Co.,

702 F. 2d 720 (1983). A defendant, such as

Kozel, does not have to prove himself inno-

cent.

(7) The refusal of the trial

judge to allow a defendant to call

a government employee sitting in

the courtroom as a witness violated

the right to confront witnesses and

to due process of law.

At trial, Kozel's attorney attempted to

call Mary Ann Benya, Chief Deputy Clerk of

the Springfield Office, as a witness when he

saw her sitting in the courtroom. The pur-

pose was to examine her in respect of the

sloppy manner in which attorney admission

records are kept by the Clerk's office. The

trial judge refused to allow Mrs. Benya to be

called as a witness by Kozel for the reason

that Kozel's attorney had not given Mrs.Benya

a subpoena and had not listed Mrs. Benya on a

witness list. There is no requirement in the

Federal Rules of Criminal Procedure or the

Local Central District Rules’ that there be an

exchange of a witness list. Kozel's right to

confront the witnesses against him and his

right to due process of law were violated.

(8) A criminal contempt

conviction requires findings of

willfulness and guilt beyond a

reasonable doubt.

Nowhere in the record does the trial

judge specifically find Kozel guilty beyond a

reasonable doubt or find that his conduct was

willful. Kozel had an absolute right to be

found guilty beyond a reasonable doubt. In

re Stewart, 571 F. 2nd 958 (CA, Miss, 1978);

Falstaff Brewing Corp. v. Miller Brewing Co.,

702 F. 2d 720 (CA, Cal, 1983); U.S. v.

Professional air Traffic Controllers, 678 F.

2a 1 (lst. Cir. 1982); In Re Winship, 397 U.S.

358 (1970); Bloom v. Illinois, 391 U.S. 194

(1968).

In addition the trial judge also stated

",.-Kozel might have thought he was (admitted) ©

but Mr. Kozel apparently was not". There must |

be a willful violation of a definite and

specific order in regard to criminal contempt.

Such an expression only reinforces the failure

of the trial judge to make a finding that

Kozel's alleged actions were willful. U.S. v.

Joyce, 498 F. 2d 592 (7th Cir. 1974); U.S. v.

Twentieth Century Fox Film Corp., 882 F. 2d

565 (2d Cir. 1989)

Thus, there is neither a finding of guilt

beyond a reasonable doubt nor a finding of a

willful violation of a definite and specific

order. The Seventh Circuit improperly at-

tempts to whitewash this by saying that absent

a clear sign that some other standard of proof

was used, it would not infer that such a basic

norm of our legal system was contravened or

ee |

ignored. (Op., page 7).

Kozel's trial took place in September of

1989. In January of 1990, the trial judge in

Kozel's case presided over a trial also in-

volving allegations of criminal contempt. In

Re Betts, 730 F. Supp. 942 (C.D. Ill. 1990).

In an opinion and order entered on January 25,

1990, the trial judge stated in part:

..--Evidence was submitted by the govern-

ment which showed, beyond a reasonable

doubt, that the court had entered an

order of reasonable specificity which

required Respondent's presence at the

hearing on June 19, and that Respondent

wilfully (sic) violated that order.

See United States v. Burstyn, 878 F 2d

1322, 1324 (llth Cir. 1989). MThere-

after it became incumbent upon the

Respondent to satisfy the Court

that his failure to comply with our

order was in fact not wilful (sic),

but was rather subject to some reason-

able excuse. See United States v. Ferm

(In re Gant, 547 F. Supp. 33, 34

(N.D. Ill. 1982). Respondent utterly

failed to so satisfy the court...

Only some five months after Kozel’s trial

for criminal contempt the trial judge used a

standard of proof in a criminal contempt case

which is identical to that used in civil con-

tempt cases. Whiie the trial judge used the

"buzz words", reasonable doubt in the sub-

sequent case what he in reality was saving was

something totally different. The trial

judge's assertion that all that has to be

proven is that an order existed and that it

was violated, is a standard applied to civil

matters, not criminal. The defendant in a

criminal matter does not have to prove any-

thing to the court, never has, and never will.

The burden of proof is totally on the United

States and proof shifting does not apply to

criminal cases. (In Re Winship, 397 U.S. 358

(1970); Bloom v. Illinois, 391 U.S. 194 (1968);

U.S. v. Professional Air Traffic Controllers,

678 F. 26 3 (amare

The two cases relied upon by the trial

judge (Burstyn and Gant) are not dispositive

of the issues regarding the burden of proof.

Gant says that the burden is on the attorney

to explain why he did not come to court. But,

Gant is merely the reporting of an action in

a Federal District Court which apparently was

never appealed so as to give the benefit of

Se ee

review by the Court of Appeals.

It is obvious that if the trial judge

in Kozel's case did not apply a reasonable

doubt standard in the Betts case five months

after the Kozel case, he most certainly did

not apply the reasonable doubt standard to

Kozel's case.

(9) The right to a speedy

trial was improperly denied.

Kozel's attorney moved to dismiss the

charges in the trial court for the reason

that Kozel was denied a speedy trial. The

Seventh Circuit held that there was no right

to a speedy trial because of the classifica-

tion of the alleged offenses as petty offen-

ses. (Op., page 7)

The offenses charged were serious offen-

ses in light of 18 U.S.C. 19 since they car-

ried jail terms and had an adverse impact on

Kozel's license to practice law. Therefore,

Kozel was entitled to a speedy trial and its

denial was reversible error.

WHEREFORE, the petitioner, KENNETH A.

KOZEL, prays that this,court grant this

petition for writ of certiorari and reverse

the decision of the Court of Appeals.

KENNETH A. KOZEL, PETITIONER

KENNETH A. KOZEL PRO SE

é APPENDIX

PAGE

1. Judgment and Opinion of the

United States Court of Appeals

for the Seventh Circuit, U.S. v.

Kozel, 89-3161, July 26, 1990 1

2. Order of Findings and Conclusions

of Richard Mills, District Judge,

United States District Court, Central

District of Illinois, U.S. v. Kozel,

89-20015, September 25, 1989 8

3. Judgment Including Sentence Under the

Sentencing Reform Act, Richard Mills,

District Judge

United States District Court Central

District of Illinois, U.S. v. Kozel,

89-20015, September 26, 1989 15

4. Information and Petition for

Criminal Contempt Order Against

Kenneth A. Kozel 18

5. Order’, Richard Mills, District Judge

United States District Court

Central District of Illinois,

U.S. v. Kozel, 89-20015 20

EN |

- |

10.

ll.

12.

APPENDIX (continued)

Letter to Attorney Registration

and Disciplinary Commission from

Assistant U.S. Attorney Thomas

Karmgard

Order, Michael M. Mihm, District

Judge,

United States District Court,

Central District of Illinois

Betts v. Wilson, 89-1052, July 5,

1989

Certificate of Search, John M.

Waters, Clerk of the United States

District Court for the Central

District of Illinois

Amended Certificate of Search,

John M. Waters, Clerk of the United

States District Court for the Central

District of Illinois

Letter from John F. Grady, Chief

Judge, United States District Court,

Northern District of Illinois

March 31, 1989

Letter from John F. Grady, Chief

Judge, United States District Court,

Northern District of Illinois,

May 17, 1989

Appearance and Jury Demand, U.S. v.

Kozel, 89-20015

PAGE

In the

United States Court of Appeals

Hor the Seventh Circuit

No. 89-3161

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

KENNETH A. KOZEL,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois, Springfield Division

No. 89-20015-Richard Mills, Judge

Arcugep May 9, 1990—Decipep JuLy 26, 1990

Before POSNER and FLAUM, Circuit Judges, and WILL,

Senior District Judge.*

WILL, Senior District Judge. Article III, § 2, provides

that “The Trial of all Crimes, except in Cases of Impeach-

ment; shall be by Jury,” and the Sixth Amendment guar-

antees a jury trial “‘in all criminal prosecutions.” But

“petty” crimes or offenses are not subject to the jury trial

clauses, Duncan v. Louisiana, 391 U.S. 145, 159 (1968);

District of Columbia v. Clawans, 300 U.S. 617, 624 (1937);

* The Honorable Hwbert L. Will of the United States District

Court for the Northern District of Illinois, Eastern Division, is

sitting by designation.

‘

2 No. 89-3161

Callan v. Wilson, 127 U.S. 549, 557 (1888), and criminal

contempt can be a petty offense. Muniz v. Hoffman, 422

U.S. 454, 475-76 (1975); Taylor v. Hayes, 418 U.S. 488,

495 (1974); Frank v. United States, 395 U.S. 147, 148

(1969); Bloom v. Illinois, 391 U.S. 194, 198 (1968); Cheff

v. Schnackenberg, 384 U.S. 373, 379-80 (1966).

Kenneth Kozel was charged under 18 U.S.C. § 461(3)

(1988) with three instances of criminal contempt: appear-

ing in federal court in Danville on May 12, 1988 without

having been admitted to practice in the Central District

of Illinois, a violation of Local Rule 1(E); appearing in

federal court in Danville on January 20, 1989, forty minutes

late; and failing to appear on February 9, 1989, after hav-

ing been ordered to appear to show cause why he should

not be held in contempt of court.

The government, heping that it could avoid a jury trial

by tracking the definition of ‘“‘petty offense” contained in

18 U.S.C. §§ 19, 3559 (aX7) and 3571 (bX6,7) (1988)—and

apparently without considering the arguable relevance of

Codispoti v. Pennsylvania, 418 U.S. 506 (1974)—offered

to “be bound by a maximum penalty of six months im-

prisonment and a $5,000 fine for each instance of contempt

which is proved.”’ Government’s Memorandum of Law on

Criminal Contempt Proceedings, Plaintiff-Appellee’s Ap-

pendix 5 (emphasis added).! On the basis of that offer,

and with the court’s concurrence, Kozel’s acts of contempt

were treated as “‘petty” and tried to the bench. The court

found Kozel guilty of two instances of contempt (viola-

tion of Local Rule 1(E) and failure to appear) but acquit-

ted him of the third (tardiness), fined him $600 and or-

dered him to request and accept appointment, pro bono,

' See Codispoti, 418 U.S. at 517 (1974) (rejecting Pennsylvania's

argument that multiple instances of contempt, arising ‘from a

single trial, . . . charged by a single judge, and . . . tried in a

single proceeding,”’ were nonetheless “separate offenses and that,

because no more than a six months’ sentence was imposed for any

single offense, each contempt was necessarily a petty offense

triable without a jury”).

a. ene OE mat Be ee oa

No. 89-3161 3

in five criminal cases over the next two years. Kozel has

not attacked the sentence as unauthorized or an abuse

of discretion. He argues that he was wrongfully denied

a jury trial and that 18 U.S.C. § 19 creates an entitle-

ment to one in any case of criminal contempt where a

prison sentence might be imposed. The government argues

that no jury was called for and that § 19 is the basis for

denying one. Both sides have botched it.

Section 19 is not grounds by itself for refusing a jury

demand.? Congress cannot narrow the scope of the jury

trial clauses by statutory enactment. The government has

missed the mark. Congress could, however, effectively

enlarge the scope of the jury clauses by legislative pro-

nouncement, and Kozel imagines that it has done so. He

has missed the mark too. Former 18 U.S.C. § 1(3) con-

tained an express reference to imprisonment, see supra

note 2, while the newer § 19 does not, and in that change

Kozel purports to find a statutory entitlement, arguing

that by its silence about prison time § 19 must be read

to abolish prison sentences for “petty offenses,” making

any crime for which a prison term might be imposed a

“serious” offense to be tried to a jury if the defendant

demands it. But that is nonsense.

Nothing in § 19 creates a statutory entitlement to a jury

trial, for criminal contempt or any other crime. There’s

no mention of juries in § 19 and no implication that a right

to a jury trial should be read in. Compare 18 U.S.C.

§§ 402, 3691, and 3692 (1988) and 42 U.S.C. §§ 1995 and

2000h (1982), which explicitly create entitlements to a jury

2 Title 18, U.S.C., § 19 provides that a “petty offense” is “a Class

B misdemeanor, a Class C misdemeanor, or an infraction, for which

the maximum fine is no greater than the amount set forth for such

an offense in section 3571(bX6) or (7) . . . .” Previously, “petty

offense” was defined by 18 U.S.C. § 1(3) (repealed by Pub.L.

98-473, 98 Stat. 2027), which provided that a petty offense was

“any misdemeanor, the penalty for which, as set forth in the pro-

vision defining the offense, does not exceed imprisonment for a

period of six months or a fine of not more than $5,000... .”

q No. 89-3161

trial for various kinds of criminal contempt. The argument

that § 19 abolishes prison sentences for ‘‘petty offenses”

also fails. Section 19 does no such thing. It expressly

refers to Class B and C misdemeanors, and 18 U.S.C.A.

§ 3581 (Supp. 1989) authorizes prison sentences not only

for misdemeanors but even for infractions. The purpose

of § 19 is simply to limit prison time for crimes covered

by that section to six months, see 18 U.S.C. § 3559(7),

without forbidding it, and to put a cap of $5,000 on the

fines that can be imposed. See 18 U.S.C. § 3571 (bX7). See-

tion 19 neither expands nor limits a defendant’s statutory

right to a jury trial for criminal contempt and may inform

but does not control interpretation of the jury clauses in

Article III and the Sixth Amendment.

That leaves the jury clauses themselves. As indicated,

Kozel did not have a statutory right to a jury trial. But

did he have a constitutional right to one? Again, the an-

swer is no. The relevance of the jury clauses in a trial

for criminal contempt turns on the severity of the sen-

tence actually imposed. Bloom, 391 U.S. at 211. See also

Codispoti, 418 U.S. at 511; Taylor, 418 U.S. at 495;

Frank, 395 U.S. at 149-150. And in the absence of a legis-

lative declaration to the contrary, a sentence of six months

or less (plus normal periods of probation, Frank, 395 U.S.

at 150-51) may be imposed without an opportunity for a

trial by a jury. Cheff, 384 U.S. at 380. See also Muniz,

422 U.S. at 476; Codispoti, 418 U.S. at 511-12; Taylor,

418 U.S. at 496; Baldwin v. New York, 399 U.S. 66, 69

(1970). Strictly speaking, Kozel got no time. He was sen-

tenced, however, to a fine and a dose of community ser-

vice, raising an interesting question. When, if ever, do

contempt sentences other than imprisonment require an

opportunity for a jury trial? See Muniz, 422 U.S. at 475-76

(framing but not clearly answering that question).

Kozel has not argued that compliance with an order to

take on five cases amounts to such a restraint on his liber-

ty that a jury trial was required. Instead, he argues that

the value of five cases, in time and labor, exceeds the

$5,000 ceiling set by 18 U.S.C. §§ 19 and 3571 (bX6,7) on

No. 89-3161 D

fines for petty offenses. As we have already seen, Con-

gress’ definition of a petty offense has no “talismanic

significance.”’ Muniz, 422 U.S. at 477.3 More to the point,

court-ordered community service is not a fine. The proper

analogy would be to work release or probation, which are

forms of punishment imposed because they serve purposes

that fines do not. Kozel’s sentence cannot and should not

be translated into dollars and cents; and that he might

be able to charge paying clients more than $5,000 for the

work the district court has ordered him to do for free

does not trigger constitutional concerns about his right

to a jury trial. Neither does the fact that proceedings

before the Illinois Attorney Registration and Disciplinary

Commission may follow from his conviction—otherwise,

every successful criminal contempt charge filed against

a lawyer in Illinois would require a jury upon demand,

since attorney convictions constitute grounds for possible

inquiry by the A.R.D.C. and must be reported. Illinois

Supreme Court Rule 761, Ill. Ann. Stat. ch. 110A, § 761

(Smith-Hurd 1985).

Three more points need mention.

1. Sanctions for criminal contempt depend on proof of

a willful violation of a lawful, definite and specific court

order. United States v. Twentieth Century Fox Film

Corp., 882 F.2d 656, 659 (2d Cir. 1989), cert. denied, 110

S.Ct. 722 (1990). Paragraph 1 of the information and peti-

tion filed against Kozel charged that he ‘appeared before

the United States District Court for the Central District

of Illinois . . . without having been admitted to practice

before that court,” in violation of Local Rule 1(E) of the

Central District. Local Rule 1(E) provides that:

3 See also Girard v. Goins, 575 F.2d 160 (8th Cir. 1978). But ef.

United States v. Professional Air Traffic Controllers Org., 678

F.2d 1 (1st Cir. 1982); United States v. McAlister, 630 F.2d 772

(10th Cir. 1980); United States v. Hamdan, 552 F.2d 276 (9th Cir.

1977); Douglass v. Firsi Nat'l Realty Corp., 543 F.2d 894 (D.C.

Cir. 1976).

6 ; No. 89-3161

[aJny person who, before his or her admission to the

bar of this Court . . . exercises in this District any

of the privileges of a member of said bar in any ac-

tion or proceeding pending in this Court, or who pre-

tends to be entitled to do so, may be adjudged guilty

of contempt of court.

Kozel contends that 1(E) does not definitely and specifical-

ly require what his conviction presupposes—that only

members of the district bar can appear in court. We dis-

agree. Although plainer statements can be found, compare

Local Rule 3.10 for the Northern District of Illinois (“({OJnly

members in good standing of the bar of this Court may

enter appearance of parties ... .’), if any “privilege”

is sensibly reserved to members of the bar, then appear-

ing on behalf of a party in a pending proceeding clearly

is, and Local Rule 1(E) establishes at least that much.

It is possible of course for a rule to be so unclear as to

fail entirely to require or forbid anything. Hence the due

process doctrine of vagueness. Lanzetta v. New Jersey,

306 U.S. 451 (1939). But Local Rule 1(E) is not on its face

repugnant to due process, it is not so vague that it “pro-

scribe[s] no comprehensible course of conduct at all,”

United States v. Powell, 423 U.S. 87, 92 (1975), and judged

as applied here, Maynard v. Cartwright, 486 U.S. 356,

361 (1988), it is not a trap for the unwary. A reasonable

person would have known that entering an appearance

without having joined the district bar was conduct covered

and forbidden by the rule. See Cartwright, 486 U.S. at

361. And Kozel had notice. When he entered his appear-

ance, the district court distinctly asked whether or not

he was a member of the district bar.

2. Criminal contempt—like other criminal charges—must

be proved beyond a reasonable doubt. The district judge

never stated on the record that the government’s proof

had met that standard. He made detailed findings but

without mentioning, either in open court or on paper,

reasonable doubt or any other standard of proof. Kozel

concludes therefore that he was not found guilty beyond

No. 89-3161 7

a reasonable doubt. District judges and magistrates, how-

ever, are well aware of the rudimentary requirement that

guilt must be proved beyond a reasonable doubt, and ab-

sent a clear sign that some other standard of proof has

been used—and there is no such indication here—we will

not infer that such a basic norm of our legal system was

contravened or ignored. United States v. Van Fossan, 899

F.2d 636, 638 (7th Cir. 1990). Express statements of the

applicable burdens and standards, made on the record,

would obviously prevent issues like this from appearing

on appeal.

3. Kozel presses five more arguments. One (speedy trial)

is disposed of by 18 U.S.C. § 3172 (2) (1988). The others

do not merit discussion.

The judgment of the district court is

AFFIRMED.

A true Copy:

Teste:

Appeals for the Seventh Circuit

USCA 79004—Midwest Law Printing Co., Inc., Chicago—7-26-90—500

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

UNITED STATES OF AMERICA ,

PLAINTIFE ,

)

v. ) NO. 89-20015

)

KENNETH A. KOZEE , )

)

DEFENDANT.

ORDER OF FINDINGS AND CONCLUSIONS

RICHARD MILLS ,District Judge:

Defendant has been charged by information

,with criminal contempt of court, pursuant to

18 U.S.C. 401, for three instances of failure

to abide by a lawful order of a court. This

cause was tried before the Court on September 6,

1989. The Court has considered the testimony

and exhibits admitted during the bench trial,

as well as arguments made by counsel both dur-

ing trial and in post-trial filings. The Court

therefore enters the following findings and

conclusions:

1. Defendant was charged with three in-

stances of criminal contempt. First, Defend-

ant was charged with appearing in Federal Court

——

in Danville, Illinois, on or about May 12,1988,

without having first been admitted to practice

in the Central District of Illinois, in viola-

tion of Local Rule 1(E). Second, Defendant was

charged with appearing for a hearing in federal

court in Danville, Illinois, on January 20,1989

forty minutes late. Third, Defendant was

charged with failing to appear in federal court

in Danville, Illinois, on February 9, 1989, at

1:30 p.m. to show cause why he should not be

held in contempt of court, despite having been

ordered to so appear by United States District

Judge Harold A. Baker.

2. The elements necessary to be proven

by the Government for conviction of all three

counts, as stated by the Government and not

objected to by Defendant, require the existence

of a lawful order and the willful disobedience

of that order. This, in turn, requires that

the Defendant have knowledge of the order but

refuse to comply with the order.

3. The Court finds, with respect to the

first charged instance of contempt, that

Defendant did willfully fail to abide by that

lawful sotee of court. The Court finds that

Local Rule 1(E), Government Exhibit 6, consti-

tutes a lawful order of court. Although De-

fendant has throughout these proceedings inti-

mated that Local Rule 1(E) is ambiguous, the

Court finds that Defendant has wholly failed

to establish-this; in fact, the Court finds

Local Rule 1(E) to explicitly provide for the

punishment by criminal contempt of those per-

sons failing to be admitted to practice in this

district prior to appearing before a court of

the district. Further, the Court finds that

Defendant knowingly and willfully entered an

appearance and argued a motion before Chief

Judge Harold A. Baker in United States District

Court in Danville, Illinois, on May 12, 1988,

in the matter of Betts v. Wilson, et al.,

No. 87-2375, without having first been admitted

to practice in the Central District. The Court

believes and credits Government Exhibit 5, a

certificate of search indicating that no record

exists of the Defendant being admitted to

practice in the Central District of Illinois.

Conversely, we find unpersuasive Defendant's

self-serving and unsupported testimony that he

became admitted in the United States District

Court for the Southern District of Illinois, in

the Peoria Division, which later became a part

of this District, in approximately 1976; this

wholly unsubstantiated testimony is nothing but

incredible. Hence, the Court finds Defendant

guilty of criminal contempt of court as charged

in Paragraph 1 of the Information and Petition

for Criminal Contempt Order against Kenneth A.

Kozel.

4. With respect to the second charged in-

stance of criminal contempt, the Court finds

that Defendant did receive actual notice of the

January 20, 1989, 2:00 p.m. hearing before Chief

Judge Harold A. Baker in the United States Dis-

trict Court in Danville, Illinois. Defendant

concedes that he arrived at this hearing 40

minutes late, but he further testified, and

this Court finds that testimony believable and

credible, that he arrived at the hearing late

due to road construction. Hence, his late ar-

rival was due to circumstances beyond his con-

trol, and he therefore lacked the requisite

mental state to be found guilty of this charge.

Therefore, the Court finds Defendant not guilty

of criminal contempt of court as charged in

Paragraph 3 of the Information and Petition for

Criminal Contempt Order against Kenneth A.

Kozel.

5. With respect to the third instance of

charged criminal contempt, the Court finds that

Chief Judge Harold A. Baker orally ordered De-

fendant, in open court and on the record, to

appear on February 9, 1989, at 1:30 to show

cause why he should not be held in contempt of

court; the Court further finds that the Defend-

ant willfully failed to appear as ordered. The

Court credits the transcript, Government Ex-

hibit 3, as an accurate and reliable account of

the proceedings on January 20, 1989. The Court

further finds that the court reporter who pre-

pared the transcript, Toni Judd, is a trained

and experienced court reporter, and finds

credible her testimony regarding the accuracy

of the transcript. Conversely, the Court

finds incredible Defendant's testimony that he

did not hear the order of Court on that day.

It is inconceivable that the Defendant would

hear everything preceding and following the

order of Court, but not the order itself.

Finally, this Court finds that the order of

Judge Mihm dated July 11, 1989, being Defend-

ant's Exhibit 1, vacates only that portion of

Judge Baker's minute order entered January 23,

1989, introduced as Government Exhibit 1-2,

which dealt with the Rule 11 sanctions entered

in the case Betts v. Wilson, et al., but did

not vacate that portion of the minute order

requiring Defendant to appear on February 9,

1989, at 1:30 p.m. Hence, this Court finds

Defendant guilty of knowingly and willfully

disobeying the January 20, 1989, oral order

of Chief Judge Harold A. Baker by failing to

appear as required on February 9, 1989, as

charged in Paragraphs 4 and 5 of the Informa-

tion and Petition for Criminal Contempt Order

against Kenneth A. Kozel.

6. Finally, Defendant has filed a memo-

randum supporting several objections raised

during trial; this memorandum also raises cer-

tain objections for the first time. To the

extent the memorandum readdresses matters

raised during trial, this Court reaffirms our

earlier rulings. To the extent this memoran-

dum raises new issues, these are DENIED as un-

timely.

7. To the extent these written findings

and conclusions conflict with our ruling from

the bench, these written findings shall con-

trol.

Ergo, the Court hereby FINDS Defendant

GUILTY of the offenses charged in Paragraphs

1, 4 and 5 of the Informationand Petition for

Criminal Contempt Order against Kenneth A.

Kozel, but FINDS Defendant NOT GUILTY of the

offense charged in Paragraph 3 of the Infor-

mation and Petition for Criminal Contempt or-

der against Kenneth A. Kozel. Further, mat-

ters raised for the first time in Defendant's

post-trial memorandum are DENIED AS UNTIMELY.

ENTER: 25 Sept. 1989.

FOR THE COURT:

/S/ RICHARD MILLS

RICHARD MILLS

United States District Judge

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA

JUDGMENT INCLUDING

V. SENTENCE UNDER THE

SENTENCING REFORM

KENNETH A. KOZEL ACT

Case Number 89-20015

John Betts

Defendant's Attorney

THE DEFENDANT:

pleaded guilty to count(s)

was found guilty on count(s) 1 and 3

after a plea of not guilty.

Accordingly, the defendant is adjudged

guilty of such count(s), which involve the

following offenses:

Count

Title & Section Nature of Offense Number(s)

T.18,Sec.401(3) Criminal Contempt 1 and 3

of Court

The defendant is sentenced as provided in

pages 2 through 3 of this Judgment. The sen-

tence is imposed pursuant to the Sentencing

Reform Act of 1984.

X_ The defendant has been found not guilty on

count(s) 2, and is discharged as to such

count (s)

__ Count (s) (is) (are) dismissed on the

motion of the United States.

X_ The mandatory special assessment is inclu-

ded in the portion of this Judgment that

imposes a fine.

It is ordered that the defendant shall pay

to the United States a special assessment of

$ , Which shall be due immediately.

It is further ordered that the defendant

shall notify the United States Attorney for

this district within 30 days of any change of

residence or mailing address until all fines,

restitution, costs, and special assessments

imposed by this Judgment are fully paid.

Defendant's Soc.Sec.Number:

353-40-8077

Defendant's mailing address:

2nd at Joliet

La Salle, IL 61301

Defendant's residence address:

2nd at Joliet

La Salle, IL 61301

September 26, 1989

Date of Imposition of Sentence

/s/ RICHARD MILLS

Signature of Judicial Officer

RICHARD MILLS, U.S. DISTRICT JUDGE _

Name & Title of Judicial Officer

September 26, 1989

Date

——— ae

Judgment-Page 2 of 3

Defendant: KENNETH A. KOZEL

Case Number: 89-20015

FINE WITH SPECIAL ASSESSMENT

The defendant shali pay to the United

States the sum of $630.00, consisting of a

fine of $600.00 and a special assessment of

$30.00.

X These amounts are the totals of the fines

and assessments imposed on individual

counts, as follows:

Count 1 - $100.00 fine and $25.00

Special Assessment

Count 3 - $500.00 fine and $5.00

Special Assessment

This sum shall be paid X immediately

as to special assessments.

X as follows:

as to fines, the deft. shall pay within

6 months.

X The Court has determined that the defend-

ant does not have the ability to pay

interest. It is ordered that:

X The interest requirement is waived.

_ The interest requirement is modified as

follows:

Judgment-Page 3 of 3

Defendant: KENNETH A. KOZEL

NUMBER: 89-20015

RESTITUTION, FORFEITURE, OR

OTHER PROVISIONS OF THE JUDGMENT

The defendant shall perform community service

by requesting and accepting appointment in 5

criminal cases, misdemeanor or felony, in

La Salle County, IL on a pro bono basis. The

defendant shall complete this community ser-

vice within 2 years and upon completion of

each case shall submit a certification in

writing to the U.S. Probation Office.

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

DANVILLE DIVISION

UNITED STATES OF AMERICA,)

)

Plaintiff,)

)

vs. )Case No. 89-20015

)

KENNETH A. KOZEL, )

)

Defendant.)

INFORMATION AND PETITION FOR CRIMINAL CONTEMPT

ORDER AGAINST KENNETH A. KOZEL

The UNITED STATES OF AMERICA, by and through

its attorneys, J. WILLIAM ROBERTS, United

States Attorney for the Central District of

Illinois, and Assistant United States Attorney

FRANCES C. HULIN, informs and petitions this

Court for an order finding KENNETH A. KOZEL in

criminal contempt of court in violation of

Title 18, United States Code, Section 401(3).

In support thereof, it is stated as follows:

once ss

1. On or about May 12, 1988, KENNETH A.

KOZEL appeared before the United States Dis-

trict Court for the Central District of

Illinois in Danville, Illinois, in the case

of Betts v. Wilson, No. 87-2375, without hav-

ing been admitted to practice before that

court in violation of Rule 1(E) of the Rules

of the United States District Court, Central

District of Illinois, effective April 1, 1987.

2. On or about January 20, 1989, KENNETH

A. KOZEL again appeared before the United

States District Court for the Central District

of Illinois in Danville, Illinois, in the same

case referred to in Paragraph 1, above, with-

out having been admitted to practice before

the court.

3. On or about January 20, 1989, KENNETH

A. KOZEL, in appearing before the court, as

referred to in Paragraph 2, above, was about

forty (40) minutes late for the scheduled

hearing in Betts v. Wilson, No. 87-2375.

4. On said January 20, 1989, when appear-

ing before the court, KENNETH A. KOZEL was

directed - in open court by Chief Judge

Harold A. Baker - to appear before the court

on February 9, 1989, at 1:30 p.m. to show

cause why he should not be held in contempt.

5. On February 9, 1989, at 1:30 p.m. and

thereafter, KENNETH A. KOZEL failed to appear

(as directed on January 20, 1989) to show

cause why he should not be held in contempt.

6. Each of the acts referred to in

Paragraphs l, 2, 3, and 5, above, constitutes

an act of contempt and the willful and know-

ing disobedience of a lawful order of the

court.

WHEREFORE, the UNITED STATES OF AMERICA

petitions the court to enter an order find-

ing KENNETH A. KOZEL in criminal contempt of

court in four instances or counts pursuant to

Title 18, United States Code, Section 401(3).

Respectfully submitted,

J. WILLIAM ROBERTS

United States Attorney

By:/S/ Frances C. Hulin

Assistant United

States Attorney

United States Attorney

201 N. Vermilion, R. 310

Danville, IL 61832

217-446-8546

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff,)

)

Vv. )NO. 89-20015

)

KENNETH A. KOZEL, )

)

Defendant. )

ORDER

RICHARD “MILLS, District Judge:

As a preliminary matter in this criminal

contempt case, the Defendant,Kenneth A.Kozel,

has asked this Court to disqualify itself

from considering any matter involved in this

case. The Court has considered the written

submissions of the parties, including Defend-

ant's late-filed memorandum of law supporting

his motion, and has also considered the argu-

ments made in two hearings? on this motion.

For the following reasons, this motion is

denied.

Facts

This case has arrived at our doorstep as

an offshoot to a civil action filed by Defend-

ant's attornev, John A. Betts. Betts sued his

ex-wife, her attorney and others in a lawsuit

filed in the Danville Division of this Court.

Originally Betts appeared pro se in his case,

but as the litigation progressed he elicited

the aid of our Defendant, Kenneth A. Kozel

(both Betts and Kozel are attorneys). Ac-

cording to the Information and Petition for

contrast, the other federal district courts

within the Seventh Judicial Circuit have each

enacted a rule explicitly requiring that at-

torneys be admitted to practice before ap-

pearing before the court, with the exception

of the Western District of Wisconsin. De-

fendant argues that he was never under an ex-

plicit obligation to be admitted to practice

before this Court, and therefore cannot be

convicted of practicing before this Court

without having been admitted.

Prior Formed Opinion

Defendant's argument that this Court has

already formed an opinion on this matter

stems from two sources. First, Attorney Betts

contacted this Court's Clerk's Office and

discovered that this Court regularly checks

our records to assure that attorneys appear-

ing before the Court have been admitted to

practice here. Second, Attorney Betts has

called the Court's attention to an article

appearing in the Streator, Illinois, Times

Press of May 2, 1989, at 2, where a law clerk

of this Court was quoted concerning the then

current posture of this case. Defendant's

assertion that these matters show that the

Court has already formed an opinion on this

question, however, has no merit.

As for the first contention, that this

Court checks to see whether attorneys have

been admitted to practice here has no bear-

ing upon whether Defendant's case is control-

led by our lecal rule. Defendant apparently

will argue, as set out above, that no local

rule explicitly requires an attorney to be

admitted to this Court before practicing here.

That we check to see whether an attorney ap-

pearing before us has been admitted to appear

here in no way indicates that this Court has

formed an opinion already upon whether our

rule explicitly requires such admission. This

question has not arisen before--no case be-

fore this Court has ever before concerned this

apparent ambiguity in our Rules--and so it can

hardly be said that our mere checking to see

if an attorney has been admitted constitutes

Our opinion on this question.

Defendant's second contention on this

point is equally untenable. It is true that

the Court's law clerk was quoted in the news-

paper article.“ Nothing in that article, how-

ever, in any way suggests that this Court,

through its law clerk, has already formed an

opinion on this case. To the contrary, the

article clearly indicates that only matters of

public record were mentioned by the law clerk.

The first paragraph simply states the nature

of this case, that is, that the Defendant has

been “charged with contempt of court ... for

allegedly appearing and arguing a case before

the United States District Court in Danville

without naving been admitted to practice be-

fore that court." The third paragraph indi-

cates that the law clerk stated that "so far

no action has been taken on the filing." The

last paragraph--the one Defendant highlights

as indicating that this Court has already

reached a decision--merely reiterates the

rules for becoming admitted to practice in

this Court; it in no way suggests any opinion

as to whether such admission is or is not

necessary.

As we made clear in discussing this issue

from the bench on May 9, 1989, this Court's

law clerks are considered extensions of the

judge. They are the eyes and the ears of the

Court, and when the law clerks speak, they

speak for this Court. Had this

U.S. Department of Justice

United States Attorney

Central District of Illinois

Headquarters Office

Springfield, IL 62705

September 12, 1989

Attorney Registration & Disciplinary

Commission

1 N. Old Capital Plaza, Suite 345

Springfield, IL 62701

Re: Kenneth A. Kozel

Gentlemen:

Per my obligation to report such matters, I

hereby inform the Attorney Registration &

Disciplinary Commission that Attorney Kenneth

A. Kozel of LaSalle, Illinois, was found

guilty of two (2) counts of criminal con-

tempt by United States District Judge Richard

Mills in United States District Court,

Springfield, Illinois, on September 6,1989.

Enclosed find a copy of the Information and

Petition for Criminai Contempt Order Against

Kenneth A. Kozel. The Government dismissed

the allegations contained in Paragraph 2 of

the Information prior to trial. Mr. Kozel

was found not guilty of the allegation con-

tained in Paragraph 3 of the Information.

Mr. Kozel was found guilty of practicing

before the United States District Court

without having been admitted to the bar of

a TT ef

said Court (as alleged in Paragraph 1 of the

Information) and of failing to appear as

directed for a rule to show cause why he

should not be held in contempt of court (as

alleged in Paragraphs 3 and 4 of the Infor-

mation).

The matter is set for September 26, 1989 at

1:30 p.m. before United States District

Judge Richard Mills in United States

District Court in Springfield, Illinois for

post-trial motions and sentencing.

Feel free to contact me at 217-446-8546 for

further information.

Very truly yours,

J. WILLIAM ROBERTS

United States Attorney

/S/ Thomas E. Karmgard

THOMAS E. KARMGARD

Enclosures

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

JOHN A. BETTS,

Plaintiff,

Vv. NO. 89-1052

eee eee ee ee

PAUL R. WILSON, et al,)

)

Defendants. )

ORDER

This court vacates Judge Baker's written

MINUTE ORDER entered and docketed 1/23/89

27 |

(#32) and JUDGMENT IN A CIVIL CASE entered

and docketed 1/23/89 (#33 .

ENTERED: NUNC PRO TUNC AS OF JULY 5, 1989

/s/ MICHAEL M. MIHM

JUDGE

CERTIFICATE OF SEARCH

I, John M. Waters, Clerk of the United

States District Court for the Central Dis-

trict of Illinois, do hereby certify that

the records in my four divisional offices

(Peoria, Danville, Rock Island and Spring-

field) have been searched, and there is no

record that Kenneth A. Kozel has ever been

admitted to practice in this district.

In testimony whereof, I hereunto set my

hand and affix the seal of said Court, at my

office in Springfield this Fifteenth day of

February, 1989.

/S/ John M. Waters

CLERK OF COURT

A TRUE COPY DATE: 2-15-89

ATTEST:

JOHN M. WATERS, CLERK

BY:

/S/ Christy Taylor

DEPUTY CLERK

U.S. DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

an f

AMENDED CERTIFICATE OF SEARCH

I, John M. Waters, Clerk of the United

States District Court for the Central Dis-

trict of Illinois, do hereby certify that a

search of the records of the Clerk's Office

of the U.S. District Court on March 7,1989,

shows that Kenneth A. Kozel was admitted to

practice in the Central District of DTlinois

on January 19, 1989. A previous search of

the records, on or about February 14th,

failed to reveal a record of Kenneth A,

Kozel's admission to the Bar of the District.

In testimony whereof, I hereunto set my

hand and affix the seal of said Court, at my

office in Springfield this Tenth day of

March, 1989.

/S/ John M. Waters

CLERK OF COURT

A TRUE COPY

ATTEST:

JOHN M. WATERS, CLERK

BY:

/S/ Karen Siser

DEPUTY CLERK

U.S. DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

DATE: 3-10-89

United States District Court

Northern District of Illinois

219 South Dearborn Street

Chicago, Illinois 60604

March 31, 1989

Mr. John A. Betts

470 Ryall Street

Marseilles, IL 61341

Dear Mr. Betts:

In response to vour letter of Februarv 15,

I made an inquiry concerning the status of

Jean Clark and Sandie Bogacz. As you indi-

cated in your letter, they are not lawyers.

It appears that they have been signing

motions in Chapter 13 cases, and appearing

on those motions, for a considerable period

of time. The propriety of this was dis-

cussed by the Bankruptcy Judge-United States

Trustee Liaison Committee in late 1988, and

apparently Mr. Phelps was instructed at that

time that he should be represented in court

only by licensed attorneys. Attached here-

to is a letter from Mr. Clifford L. Meachan,

Assistant United States Trustee, addressed

to Bankruptcy Judqe Thomas James, explaining

the action that was taken.

I do not know whether non-lawyers are still

Signing motions on behalf of Mr. Phelps in

Chapter 13 cases, but I indicated to Judge

James today my view that, if they are, that

would constitute the practice of law. Judge

James will request Mr. Meacham to relay this

information to Mr. Phelps, and I assume there

will be no problem in the future.

Thank you for bringing this matter to my at-

tention. If you observe any further prob-

lems, please let me hear from you. I am

sure that Chief Judge Schwartz of the bank-

ruptcy court would also like to be advised.

(the reason I involved Judge James in this

matter is that all of the other bankruptcy

judges are at a conference and will not re-

turn until next week.)

Sincerely,

/S/ John F. Grady

John F. Grady

sas

cc: Hon. John D. Schwartz

Hon. Thomas James

United States District Court

Northern District of Illinois

219 South Dearborn Street

Chicago, Illinois 60604

Chambers of

John F. Grady

Chief Judge May 17, 1989

John A. Betts

Lawyer

470 Ryall Street

Marseilles, Illinois 61341

Re: Craig M. Phelps

Dear Mr. Betts:

This will acknowledge your letter of May 3,

expressing the view that the matter of

Craig Phelps and his staff should be ref-

ferred to the United States Attorney's Of-

fice for possible prosecution. If you be-

lieve that a criminal offense has occurred,

I suggest that you report it to the United

States Attorney. As far as the court is

concerned, I see no need for further ac-

tion.

Very truly yours,

/S/ John F. Grady

John F. Grady

Chief Judge

JFG/cb

cc: Hon. John Schwartz

Hon. Thomas James

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

UNITED STATES OF AMERICA,)

)

Plaintiff,)

vs. No. 89-20015-01

KENNETH A. KOZEL,

ee eee ee ee eee

JURY

DEMANDED

Defendant.

APPEARANCE

I, the undersigned Attorney, hereby enter

my appearance on behalf of the named Defend-

ant herein. Trial by jury demanded.

/s/ John A. Betts

John A. Betts

Attorney for Kenneth A.

JOHN M. WATERS,CLERK Kozel

A TRUE COPY

ATTEST:

BY 470 Ryall Street

/S/ Marv Ann Benga Marseilles, Illinois

DEPUTY CLERK 61341

U.S.DISTRICT COURT Tel. (815) 795-6101

CENTRAL DISTRICT

OF ILLINOIS DATE: Jan. 12, 1990

Certificate of Service

I, the undersigned, hereby certify that

I mailed a copy of this Appearance to:

Frances C. Hulin

Assistant United States Attorney

201 N. Vermillion R. 310

Danville, Illinois 61832

by enclosing the same in a postage prepaid

envelope and depositing it in a U.S. Mail

Chute at Marseilles, Illinois, the 6th day

of March, 1989.

Dated: March 6, 1989 /S/ John A. Betts

John A. Betts

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.