# Petition for Writ of Certiorari — Kozel v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1089

## Text

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

2

(c) TABLE OF CONTENTS

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.

11

19

19

25

(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.

4

27

30

37

39

40

41

45

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

In

Brewing Co., 702 F. 2d 720

(CA, Cal, 1983) e . *

Re Betts,

In

730 F. Supp. 942 (C.D.

Re Stewart,

In

571 F. 2d 958 (CA, Miss,

Re Williams,

In

509 F. 2d 949 (1975) .

Re Winship,

397 U.S. 358 (1970) . ~~ « «© «

Til.

1990)

1978) .

21

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...

8

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

9

Se

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-

10

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

11

ea

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

12

a

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

13

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

14

|

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

15

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

16

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

17

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

18

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

19

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

20

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

21

’

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

22

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

23

———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

24

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

25

ny

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

26

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-

27

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).

28

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

29

ee

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

30

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.

31

Ty

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

32

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

33

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

34

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...

35

ae

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.

36

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.

37

Ee

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

38

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).

39

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

40

|

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.

=

41

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

42

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

43

"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

44

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.

45

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

BY
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

46

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

47

PAGE

25

26

27

28

29

30

31

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

10
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

11

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

12

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

13

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

14

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

15
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

17

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:

18

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

19

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

20

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

21
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

22
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.

23

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-

24
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

25

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

26

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

28

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

29

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.

30

(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.

31

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

32

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3331%3A1. Public record. Not legal advice.