Professional Documents
Culture Documents
No. 09-4125
COUNSEL
ARGUED: Bryan Gates, Jr., Winston-Salem, North Carolina,
for Appellant. Terry Michael Meinecke, OFFICE OF THE
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UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United
States Attorney, L. Patrick Auld, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
OPINION
TRAXLER, Chief Judge:
Bryan Emery Gates, Jr., appeals his contempt conviction
under 18 U.S.C. 401(3) for failing to appear in court on time
for a plea hearing. We conclude that the district court erroneously imposed punishment in a summary proceeding without
affording Gates notice or a meaningful opportunity to respond
to the charges against him. For the reasons that follow, we
reverse.
I.
Gates, an attorney practicing in North Carolina, was
appointed by the district court to represent Nicholas Sanchez
Hernandez with respect to federal criminal charges in a tencount indictment filed in the Middle District of North Carolina. On December 2, 2008, Hernandez pled not guilty to all
counts. The district court entered a general scheduling order
applicable to all cases arraigned in the Middle District of
North Carolina during December 2008, requiring that any
plea agreements be filed by December 31, 2008, and preliminarily setting all change of plea hearings for January 5, 2009.
Hernandez ultimately pled guilty to five counts in the
indictment. The district court scheduled and rescheduled Hernandezs plea hearing three times, relying on the office of the
United States Attorney to notify Gates of the date and time.
As was apparently common practice, Mr. Owens, a staff
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suggest to the Court that you sat back and waited for
somebody to tell you whether or not your case is
scheduled for trial is just not acceptable.
J.A. 7-10 (emphasis added). Having concluded Gatess conduct was contemptuous, the district court imposed a $200 fine
against Gates.
On appeal, Gates argues that because his alleged contempt
was committed, if at all, outside of the district courts presence, the court was precluded from summarily imposing contempt sanctions. Instead, Gates claims he was entitled, at a
minimum, to reasonable notice and a chance to prepare a
defense against allegations that his failure to be on time for
Hernandezs hearing, as well as his failure to appear on other
unspecified occasions, constituted criminal contempt under 18
U.S.C. 401(3). Moreover, Gates argues that because the
record contains no evidence of the kind of intentional conduct
required for a criminal contempt conviction under 401(3),
there is no reason for us to remand for a plenary contempt
hearing. We conclude that on both points Gates is correct.
II.
Gates did not object to the summary procedure employed
by the district court in its consideration of criminal contempt
sanctions against him, nor did he specifically challenge the
sufficiency of the evidence to satisfy the elements of a criminal contempt offense. Thus, the plain error standard of review
applies. See Fed. R. Crim. P. 52(b) ("A plain error that affects
substantial rights may be considered even though it was not
brought to the courts attention."). We recognize, however,
that until the very moment the district court imposed a fine
against Gates, it was not at all clear that the district court was
contemplating criminal contempt sanctions. The district court
simply asked Gates to explain why he failed to make a timely
appearance for Hernandezs plea hearing. The court did not
indicate that contempt sanctions were a possibility, and we
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Allen, 587 F.3d 246, 255 (5th Cir. 2009) (per curiam) ("[T]he
elements of criminal contempt under 18 U.S.C. 401(3) are:
(1) a reasonably specific order; (2) violation of the order; and
(3) the willful intent to violate the order." (internal quotation
marks omitted)). "Criminal intent is an essential element of
the offense." United States v. Marx, 553 F.2d 874, 876 (4th
Cir. 1977). Therefore, absence or tardiness alone is not contemptuous; the reasons for the failure to appear at the
appointed time are of central importance. See In re Chandler,
906 F.2d 248, 250 (6th Cir. 1990) ("[A]bsence alone cannot
be contempt. . . . The court must learn why the attorney was
late in order to determine whether the attorney had criminal
intent."). Although the fact of an attorneys or partys absence
from a scheduled proceeding may be obvious and "within the
knowledge and presence of the court," United States v. Baldwin, 770 F.2d 1550, 1555 (11th Cir. 1985) (internal quotation marks omitted), the reason for the absence is not, see In
re Smothers, 322 F.3d 438, 440 (6th Cir. 2003) (explaining
that the reason for an "attorneys absence is not something
obvious to the court and therefore cannot fall under [the summary disposition provision of Rule 42]"); see also In re Allis,
531 F.2d 1391, 1392 (9th Cir. 1976) (recognizing that "the
contempt consists not in the absence from the courtroom but
in the reasons for the attorneys presence elsewhere, and the
presence elsewhere was, of course, not in the actual presence
of the Court").
It has long been the rule in the Fourth Circuit that the mere
failure to appear in court at a scheduled proceeding is "not an
act committed in the actual presence of the court, and [is]
therefore not punishable summarily under Rule 42[(b)]."
United States v. Willett, 432 F.2d 202, 205 (4th Cir. 1970)
(per curiam). Our position is squarely in line with the majority
rule that mere tardiness or absence at a scheduled court
appearance is not a direct contempt subject to summary disposition under Rule 42(b). See, e.g., In re Contempt Order, 441
F.3d 1266, 1268 (10th Cir. 2006) (explaining that attorneys
failure to appear "by no stretch . . . occur[red] within the pres-
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III.
Gates asserts that there is no reason to remand for the district court to follow the proper procedures under Rule 42(a)
as there is insufficient evidence in the record to sustain his
conviction under 18 U.S.C. 401(3). Again, in order to support a conviction under 401(3), the evidence must establish
that "the defendant willfully violated a decree that was clear
and left no uncertainty in the minds of those that heard it."
Linney, 134 F.3d at 278; see 18 U.S.C. 401(3) ("A court of
the United States shall have power to punish . . .
[d]isobedience or resistance to its lawful writ, process, order,
rule, decree, or command.").
We agree with Gates. We find the record completely lacking any evidence from which the court could find that Gates
had the requisite criminal intent to support a conviction under
401(3). The record is devoid of evidence showing that Gates
willfully refused to appear for Hernandezs plea hearing on
Friday, January 30, and there is certainly no evidence of willfulness on the other unspecified instances for which the district court found Gates in contempt. The only evidence in the
record was supplied by Gates, who stated simply that, while
he knew a Friday hearing was possible, he did not understand
that the hearing had actually been rescheduled until he was
informed by the office of the United States Attorney on the
morning of the hearing. The district court apparently found
that Gatess failure "to follow up" on the possibility that the
hearing had again been rescheduled was evidence of intent:
"To suggest to the Court that you sat back and waited for
someone to tell you whether or not your case is scheduled for
trial is just not acceptable." J.A. 9-10. We disagree this shows
any willfulness or recklessness on the part of Gates. There is
no evidence that Gates knew that the hearing had been rescheduled; rather, there is evidence only that Gates knew it
was a possibility. At most, Gates might have been negligent
in failing to be more active. Negligence, however, is insufficient to sustain a conviction under 18 U.S.C. 401(3). See
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