United States v. Gregory Robinson, Barbara A. Butler, 922 F.2d 1531, 11th Cir. (1991)
Uploaded by
Scribd Government DocsUnited States v. Gregory Robinson, Barbara A. Butler, 922 F.2d 1531, 11th Cir. (1991)
Uploaded by
Scribd Government Docs922 F.
2d 1531
UNITED STATES of America, Plaintiff-Appellee,
v.
Gregory ROBINSON, et al., Defendants,
Barbara A. Butler, Appellant.
No. 89-4076.
United States Court of Appeals,
Eleventh Circuit.
Feb. 7, 1991.
William J. Sheppard, Cyra C. O'Daniel, Jacksonville, Fla., for appellant.
Thomas E. Morris, Kathleen A. O'Malley, Asst. U.S. Attys., Jacksonville,
Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before JOHNSON and BIRCH, Circuit Judges, and MERHIGE * , Senior
District Judge.
JOHNSON, Circuit Judge:
This case arises from the district court's holding of attorney Barbara A. Butler
in contempt under the summary contempt procedure authorized by Federal
Rule of Criminal Procedure 42(a). In this appeal, Butler argues that the conduct
for which she was cited does not constitute contempt. We agree and therefore
reverse the district court and dismiss the case.
I. BACKGROUND OF THE CASE
2
Barbara A. Butler, an attorney in Jacksonville, Florida, was court appointed to
represent Gregory Robinson, the lead defendant in a multi-defendant cocaine
conspiracy trial. The jury was selected on November 7, 1989. Presentation of
evidence commenced on November 13, 1989, with Judge John H. Moore, II,
Middle District of Florida, presiding. As the trial progressed, tension began to
develop between Judge Moore and Butler.1
3
On November 16, 1989, the fifth day of trial, the government attempted to
introduce into evidence some photographs of a location relevant to the crime.
The court permitted Butler to take the witness on voir dire examination in
which she attempted to show that the witness had no independent recollection
of the location. Butler then said to the judge, in front of the jury, "Your Honor,
I would submit he has no independent recollection and that this is the only way
he can identify it, and I would object. That's what the Government has done all
throughout this trial." 2 Judge Moore had the jury removed and then asked
Butler, "For that last comment about what the government has done throughout
this trial, Ms. Butler, why don't you just right now advise this court as to why
you shouldn't be held in contempt. Make a statement like that in front of the
jury." Butler asked for additional time to respond. The judge, however, found
her in contempt and sentenced her to spend the first week-end after the
conclusion of the trial in the custody of the United States Marshal. 3
On December 4, 1989, Judge Moore entered a written contempt order. The
summary order, however, failed to recite the facts upon which the contempt
finding was based as required by Federal Rule of Criminal Procedure 42(a).4
The trial concluded with jury verdicts of guilty on December 13. On December
14, Butler filed a notice of appeal of the contempt order and a motion to stay
the imposition of the sentence which was set to begin on December 15. The
court stayed the execution of the sentence, and this appeal ensued. In light of
the district court's failure to comply with Rule 42(a), this appeal requires us to
examine the record and determine whether there exists adequate support for the
district court's contempt finding and whether the remedy for that lack of
compliance with Rule 42(a) is reversal and dismissal or remand.II. ANALYSIS
In reviewing the sufficiency of the evidence in support of a finding of criminal
contempt, "we must determine whether the evidence, construed in the light
most favorable to the government, would permit the trier of fact to find the
defendant guilty beyond a reasonable doubt." United States v. Burstyn, 878
F.2d 1322, 1324 (11th Cir.1989). "The conviction will be sustained if there is
substantial evidence to support it." Id. "To support a conviction, the government
must prove: (1) that the court entered a lawful order of reasonable specificity;
(2) the order was violated; and (3) the violation was willful." Id. Butler's
challenge to the sufficiency of the criminal contempt finding is based on the
grounds that (1) the court's ruling was not specific and she was thus not
sufficiently warned of it, and (2) she did not violate the court's order willfully.
A. Specificity
"The reasonableness of the specificity of an order is a question of fact and must
be evaluated in the context in which it is entered and the audience to which it is
addressed." United States v. Turner (In re Howard Moore, Jr.), 812 F.2d 1552,
1565 (11th Cir.1987). The government claims that the incident for which the
court found Butler in contempt, her statement relating to admission of the
photographs, was an improper speaking objection which violated the Local
Rule of the Middle District of Florida 5.03(b)(12). That rule states: "In making
objections counsel should state only the legal grounds for the objection and
should withhold all further comment or argument unless elaboration is
requested by the Court." As a member of the bar of the Middle District of
Florida, Butler is charged with knowledge of the rules. See Local Rule 2.01(b)
(requiring members of the bar to certify their familiarity with the local rules).
The language in Rule 5.03(b)(12), however, is precatory rather than mandatory.
Moreover, according to Rule 5.03(a), the rules in chapter 5 are neither
mandatorily nor uniformly enforced inasmuch as individual district judges may
impose rules in addition to those listed or may excuse compliance with those
listed. Therefore, we cannot easily assume that Butler was on notice of the
judge's rule against speaking objections simply because of her membership in
the bar.
Butler argues that the court did not give a specific warning that the statement
she made in regard to the photographs would constitute contempt. She admits
that the court gave her a warning not to continue to ask a question after an
objection to that question had been sustained. See supra note 1. But asking
questions was not the reason for which the court found Butler in contempt. The
court also admonished Butler not to argue with the court's rulings.5 But again,
argumentativeness was not the enunciated reason for the court's finding.
Though the court's warning against argumentativeness clearly indicates the
level of the court's annoyance with Butler, it cannot be construed to constitute a
clear order or warning against speaking objections. The government, however,
points to the court's exhortation concerning Butler's comment about a witness
never having been in a business class as a specific warning against speaking
objections. See supra note 1. Butler admits that her remark regarding the
business class was sarcastic and inappropriate. The remark, however, was made
after the objection was sustained and so was not technically a speaking
objection. It would, therefore, be difficult to construe Judge Moore's scolding
regarding the business class remark to be a specific order against speaking
objections. At any rate, even if Butler's remark could in some way be
considered a speaking objection, the judge's statement that the remark was
inappropriate is not comparable in specificity to orders this Court has
previously found specific enough to sustain a finding of contempt. See, e.g.,
Turner, 812 F.2d at 1564 (in which the district judge told attorneys that an
issue was not to be submitted to the jury and "if anybody makes that argument
to this jury they are going to be held in contempt and I want that clearly
understood.").
B. Willfulness
9
"Willfulness" is defined as " 'a deliberate or intended violation, as distinguished
from an accidental, inadvertent, or negligent violation of an order.' " United
States v. Baldwin (In re Steven Jackson), 770 F.2d 1550, 1558 (11th Cir.1985)
(quoting Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 782 (9th
Cir.1983)), cert. denied, 475 U.S. 1120, 106 S.Ct. 1636, 90 L.Ed.2d 182
(1986). In applying this standard, this Court has found an attorney willfully in
contempt where it could be shown that the attorney knew of a specific court
order and was aware that noncompliance with it would constitute disobedience
to the court. See, e.g., Baldwin, 770 F.2d at 1558 (where attorney knew he was
ordered to appear in court on a certain date and had been warned that his failure
to do so would make him subject to contempt, his conduct was deemed willful).
In the instant case, however, it has not been shown that Butler was aware of the
court's strong prohibition against speaking objections. It therefore cannot be
assumed that her violation was willful. Rather, it would appear that her
statement in regard to the photographs was more of an "inadvertent or negligent
violation." See id.
10
Moreover, the Supreme Court has stated that "it is the right of counsel for every
litigant to press his claim, even if it appears farfetched and untenable, to obtain
the court's ruling. Full enjoyment of that right, with due allowance for the heat
of controversy, will be protected by appellate courts when infringed by trial
courts." Sacher v. United States, 343 U.S. 1, 9, 72 S.Ct. 451, 455, 96 L.Ed. 717
(1952). Rule 42(a) was thus envisioned for use in the "unusual situation ...
where instant action is necessary to protect the judicial institution itself." Harris
v. United States, 382 U.S. 162, 167, 86 S.Ct. 352, 355, 15 L.Ed.2d 240 (1965).
In light of the Supreme Court's guidance, Butler's action in the heat of pressing
her claim should not be deemed willful and contemptuous.
11
In sum, the government has not shown, and there is nothing in the trial
transcript included in the record on appeal that could show, beyond a
reasonable doubt with substantial evidence that Butler willfully violated a
specific order of the district court. See Burstyn, 878 F.2d at 1324. Butler's
conduct, therefore, though perhaps lacking decorum, cannot be said to
constitute contempt. Consequently, a remand to the district court to allow
compliance with Rule 42(a) would be fruitless.6 III. CONCLUSION
12
For these reasons, we REVERSE the district court's contempt order and
DISMISS the proceedings against attorney Butler.
Honorable Robert R. Merhige, Jr., Senior U.S. District Judge for the Eastern
District of Virginia, sitting by designation
For example, on November 13, 1989, the following exchange took place during
the government's direct examination of a witness:
Q. If we were going back and saying we were in a business management class
again, are you in a position, with your relationship with Mr. Robinson-MS. BUTLER: Objection, your Honor, to the hypothetical nature of the
question. We're not in a business class.
THE COURT: Sustained.
MS. BUTLER: And I doubt that this young lady has ever been in one.
MR. DEVEREAUX: Objection, your Honor, to the statements by counsel. I
think it's totally inappropriate.
THE COURT: It is. And it will not happen again.
MS. BUTLER: Yes, sir.
On November 14, 1989, after Butler had reiterated a question to which Judge
Moore had already sustained an objection, Judge Moore stated outside the
presence of the jury:
THE COURT: Ms. Butler, when I sustain an objection to a question, I don't
expect that question to be asked over and over again. The next time that that
happens, I will cite the person causing it for contempt of this Court.
On November 15, 1989, after Butler had cross-examined a witness in an
attempt to attack the chain of custody of a tape recording which the government
was attempting to introduce into evidence, Judge Moore had the jury taken out
and then stated:
THE COURT: Ms. Butler, you are, without a doubt, the most obnoxious
obstructionist lawyer, I think, who's ever been in this courtroom at least.
There's absolutely no reason in the world to waste time like you're wasting time
on this case by going through that type of chain of custody. I don't believe
there's a criminal defense lawyer in this city who would object to that tape on
the basis of the chain of custody. And if you want to do that, I guess you've got
every right in the world to do so. But by doing so, you just epitomized the
reason that the public thinks of lawyers as less than used car salesmen.
We'll be in recess for ten minutes and then we'll come back. And if you want to
keep this up, you just keep it up.
MS. BUTLER: Thank you, sir.
2
Butler had, in fact, objected throughout the trial that the government was using
photographs to lead the witnesses. The court consistently overruled the
objection. For example, on November 13, the first day of testimony, Butler
objected:
MS. BUTLER: Your Honor, I would object. It appears that the Government is
getting the information from Miss Taylor by showing her a picture of the next
place they want her to testify about, and it--she doesn't state the address until
Mr. Devereaux shows her the picture, and I would object that he's leading with
his exhibits.
MR. DEVEREAUX: Your Honor, the United States-THE COURT: Overruled.
After the jury returned, Judge Moore sustained Butler's objection to admission
of the photographs
Fed.R.Crim.P. 42(a) states:
A criminal contempt may be punished summarily if the judge certifies that the
judge saw or heard the conduct constituting the contempt and that it was
committed in the actual presence of the court. The order of contempt shall
recite the facts and shall be signed by the judge and entered of record.
Thus, if a court opts to use this summary procedure instead of the Rule 42(b)
procedure which requires notice and a hearing, then the court must specifically
recite in the contempt order the circumstances leading to the finding of
contempt. This requirement is strictly observed in order to permit informed
appellate review. United States v. Schrimsher (In re Charles D. Butts), 493
F.2d 842, 845 (5th Cir.1974) (reversing and dismissing contempt proceedings
against an attorney where the district court failed to comply with Rule 42(a)).
The government concedes that the written order issued by Judge Moore did not
comply with Rule 42(a).
On November 15, 1989, as Butler cross-examined a witness, Judge Moore had
the jury removed and the following exchange took place:
THE COURT: Ms. Butler, when you ask a witness a question, you must give
that witness an opportunity to answer that question. When the Court says
something to you, the Court does not ask you to argue with the Court. Now, do
you understand that?
MS. BUTLER: Yes, sir.
THE COURT: Is there any way I can get through your head-MS. BUTLER: Yes, sir.
THE COURT: --that you got to act like a lawyer out there?
MS. BUTLER: The problem is, I don't believe that's the question that I asked.
The question that-THE COURT: Well, you're not going to argue with me. Do you understand
that? Now, if you want that young lady sitting over there on that wall to put
handcuffs on you and take you downstairs to jail, all you have to do is keep up
your routine right now and that's where you're going to go.
MS. BUTLER: Your Honor, I want the question that I asked answered, or I
want the ability to ask the question that I meant to ask. That is the only thing I-THE COURT: Well, I don't know what you meant to do. I know what you did.
MS. BUTLER: What I believe I asked is for her to step down and look at the
photographs to determine whether any of the locations that I have just read
from the list appear in any of these photographs. And I know that 4th and
Francis is one of them.
THE COURT: I asked the jury to be excused because I want you to know that
you are riding on the thinnest ice that you could possibly be riding upon. And
pretty soon that ice is going to break and down you go. Do you understand that
now?
MS. BUTLER: Yes, sir.
The government argues for remand rather than reversal and dismissal, basing
its argument on United States v. Vano (In re Herbert Shafera), 496 F.2d 1195
(5th Cir.1974), in which this Court remanded a contempt case for the limited
purpose of allowing the district court to comply with the formalities of Rule
42(a). This three-paragraph per curiam opinion relates little of the background
of the case. It does, however, state that the record was "entirely adequate to
support the contempt adjudication." Id. at 1196. The Vano remand thus merely
allowed the district court to comply with the formalities of Rule 42(a) once the
appellate court had determined that the contempt finding was appropriate. As
stated in the discussion above, our culling of the record reveals no support for a
contempt finding against Butler. The Vano case is therefore inapposite
You might also like
- No ratings yetW. Michael Lovern v. Doug Lyons, Counselor Physician's Attendant Weldon Dr. Powell Mark Henry Physician's Attendant Kelly Officer Gonzales Lt. Chalmers Capt. Brewe Mr. Falzone Mr. Perry Norman A. Carlson Sam Samples Lt. Doddrill Jane Doe Mr. Farmer Mr. Chadwick Dr. McWay Mr. Willingham, 904 F.2d 700, 4th Cir. (1990)5 pages
