UNITED STATES of America, Appellee, v. Charles Clark MARSHALL, III, et al., Appellants, 451 F.2d 372

PER CURIAM: The defendants were indicted under 18 U.S.C. §§ 2101, 1361 and 371, for alleged depredation of federal property in Seattle, Washington. Their trial commenced in the Western District of Washington on November 23, 1970, and continued until December 10, 1970, when the court declared a mistrial and summarily cited six of the seven defendants for criminal contempt. The trial judge issued the first certificate of contempt in open court on December 14, 1970. During that session disruptions occurred which gave rise to the issuance of a second contempt certificate.

Each of the certificates imposed a six-month sentence on the cited defendants. Defendants appeal asserting (1) that their conduct was not contumacious within the meaning of 18 U.S.C. § 401(1), and (2) that the

summary procedure was inappropriate. We reverse and remand for further proceedings consistent with this opinion. We start with the proposition recently stated by Mr. Justice Black in Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), that “it is essential to the proper administration of criminal justice that dignity, order and decorum be the hallmarks of all court proceedings in our country.” To that end, the courts from the very beginning have been empowered to punish for contempts of their authority to conduct an orderly public trial. Judiciary Act of 1789 (1 Stat. 73, 83).

See also 4 Blackstone’s Commentaries 286. The substantive offense as carried forward in the statutes from the Judiciary Act of 1789 has historically consisted of two classes: (1) direct and (2) indirect. Direct contempt is misbehavior having the effect of interfering with the orderly conduct of a trial occurring “under [the court’s] own eye and within its hearing.” Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888).

Indirect contempt is contumacious behavior occurring beyond the eye or hearing of the court and for knowledge of which the court must depend upon the testimony of third parties or the confession of the contemnor. Agreeably to these classifications, Rule 42 Fed.R.Crim.P., provides two separate procedures for trying and punishing contemptuous behavior. Even a cursory reading of the rule, “substantially a restatement of existing law, Ex parte Terry, 128 U.S. 289 [95 S.Ct. 77, 32 L.Ed. 405]; Cooke v. United States, 267 U.S. 517, 534 [45 S.Ct. 390, 69 L.Ed. 767],” Offutt v.

United States, 348 U.S. 11, 13-14, 75 S.Ct. 11, 99 L.Ed. 11 (1954), reveals that the two procedures are essentially different, and defendants vigorously assert that the trial court improperly invoked direct contempt powers under subsection (

a) rather than indirect contempt powers under subsection (b). The phrase “in the actual presence of the court” delimits the class of contempts cognizable under subsection (

a) and reflects the case law requirement that

summary procedure may be employed only for the trial and punishment of direct contempts, i. e. those which occur “under [the] eye and within the hearing” of the court. Ex parte Terry, supra. See also Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925); and In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). It means no less than that the use of

summary power is proper only if the trial judge actually witnesses the misbehavior deemed contumacious. Cooke v. United States, supra. In Rule 42(

a) cases, the judge is his own best witness of what occurred. If he must depend upon the testimony of other witnesses or the confession of the contemnor for his knowledge of the offense, Rule 42(

a) does not apply. The ever present danger that these

summary powers may be abused has brought us to view their exercise with caution and circumspection. Anderson v. Dunn, 19 U.S. 204, 6 Wheat. 204, 5 L.Ed.2d 242 (1821); Nye v. United States, supra; Pietsch v. President of United States, 434 F.2d 861 (2d Cir.). This means, among other things, “that the procedural safeguards that the Rule provides must be strictly adhered to lest the drastic power authorized escape the permissible limits of reason and fairness.” Pietsch v. President of United States, 434 F.2d 861, 864 (2d Cir. 1970) (Justice Clark). One of the procedural safeguards provided by Rule 42(

a) is that the order entered by the judge “shall recite the facts” — “the facts,” in this context, being “the conduct constituting the contempt,” which the judge must certify he “saw or heard” “committed in the actual presence of the court.” This recitation of the facts in the certificate is of critical importance. “A criminal contempt order like any other conviction of crime must stand or fall on the sufficiency of the specifications of wrongdoing upon which it is based.” Tauber v. Gordon, 350 F.2d 843, 845 n. 1 (3d Cir. 1965). As this court said in Hallinan v.

United States, 182 F.2d 880, 882 (9th Cir. 1950), “if the judgment is to be sustained the conduct complained of in the certificate must in itself constitute contempt.” See also Parmelee Transp. Co. v. Keeshin, 294 F.2d 310, 316 (7th Cir. 1961), rev’d on other grounds sub nom. In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962). The reason for this requirement is obvious. Because the defendant has been convicted without notice or hearing, there is no record of the conviction upon which appellate review may be based. The factual recitation in the certificate supplies this deficiency.

Accordingly, “[t]his requirement is more than a formality. It is essential to disclosure of the basis of decision with sufficient particularity to permit informed appellate review.” Tauber v. Gordon, swpra, 350 F.2d at 845. See also Parmelee Transp. Co. v. Keeshin, supra, 294 F.2d at 315-16; cf. Great Lakes Screw Corp. v.

N.L.R.B., 409 F.2d 375, 379-80 (7th Cir. 1969). “[I]nformed appellate review” is possible only if the facts are stated in sufficient detail for the appellate court to determine whether the conduct upon which the conviction rests was contemptuous, factually and legally; whether it was of such character, and occurred in such circumstances, as to permit

summary conviction under Rule 42(a) , and because Rule 42 sentences are subject to appellate review and revision, whether the conduct relied upon justified the sentence imposed. This means that the judge must recite the specific facts upon which the contempt conviction rests. Conclusory language and general citations to the record are insufficient. Here neither certificate meets this standard. The first certificate appears to base the contempt convictions upon both the specific misconduct of December 10 and the totality of misconduct during the prior ten days of trial. The judge states that the

summary contempt is based upon “misconduct,” which he describes as “actions, language, and other unjustified trial disruptions and inexcusable delays in trial proceedings.” He then certifies that he personally saw this “misconduct” “during eleven trial days” (App. I at i).

He concludes “that the totality of defendants’ long continued and repeated misconduct hereinabove specified in obvious defiance of admonitions and warnings by the Judge concerning defendants’ misconduct in the courtroom, occurring frequently and in the presence of the jury, and the final culmination of such course of repeated misconduct that occurred on Thursday morning December 10, 1970, all of which misconduct, including the final episode, occurred in the actual presence of the Judge and was personally seen and heard by the Judge, constituted a contempt” (App. I at vi).

Assuming that the specific incidents of December 10 relied upon in the first certificate are sufficiently identified, the contumacious conduct at other times during the trial clearly is not. The judge’s description of this latter conduct is set out in the margin. Such conclusory statements, unsupported by specific references to the record, are insufficient. See note 8, supra. The second certificate also reveals that the judge relied upon all the misconduct described in that certificate and found that it constituted a single contempt by each defendant charged.

The final paragraph states “that all of the above described misconduct occurred in the actual presence of and was personally seen and heard by the Judge, and that such misconduct constituted a contempt” (App. II at ix-x) (emphasis added). The misconduct is described in the second certificate as follows: “Stern’s defiance of the directions, orders and warnings by the court in continuing her remarks precipitated loud, boisterous and violent actions and language in which the Judge saw and heard defendant Stern and each defendant other than Lerner personally participate.

Riotous conduct and an incipient riot occurred in the courtroom. [After] the Judge left the courtroom * * * at least for a half hour or more scuffling and loud and boisterous language in the courtroom could be heard in the Judge’s office. * * * During the miscon-duet above specified, proceedings in court were at a standstill and could not be resumed for more than an hour” (App. II at ix). The misconduct relied upon, then, began when Stern refused to stop speaking and ended about a half hour after the judge had left the courtroom.

Thus the convictions described in the second certificate rested in part upon conduct that occurred outside the judge’s presence, not punishable summarily under Rule 42(a). Except for the description of Stern’s refusal to stop speaking, the second certificate is far too general to satisfy Rule 42(a).

The cases cited in note 8 reject as inadequate language no more conclusory than the second certificate’s allegation of “loud, boisterous and violent actions and language in which * * Stern and each defendant other than Lerner personally participate^],” “[r]iotous conduct and * * * incipient riot,” and “scuffling and loud and boisterous language.” While the certificate does, by reference, incorporate the entire transcript, this does not satisfy the specificity requirement of Rule 42(a). First, the certificate contains no citations to particular passages in the transcript.

Incorporation of the entire transcript by general reference does not correct deficiencies in the certificate. The transcript can assist the appellate court in performing its function only if the specific facts constituting the contempt are clearly identified in the certificate. This may seem overly technical here since the misconduct relied upon began when Stern refused to stop speaking and the reporter’s transcript of what occurred thereafter comprises but three pages (R.T. 2119-21).

The point is, however, that the reporter’s transcript may not reflect the particular conduct that the judge saw and heard and that he relied upon. Much that the judge saw and heard may not be reflected in the transcript. The trial judge recognized this: he sought to incorporate in the second certificate not only the reporter’s transcript but also the reporter’s recordings and the audio and video tapes (App. II at viii). Even this, however, is insufficient.

If these records reflected contumacious conduct we could still not be sure that the judge saw or heard that particular conduct, as he must have to justify conviction under Rule 42(a). We can be sure that this prerequisite to conviction under Rule 42(

a) is satisfied only if the judge himself recites or unmistakably refers to the particular facts upon which he relies and certifies that he personally witnessed them. And that is true, of course, even as to conduct that is reflected in the reporter’s transcript. In short, the requirement of Rule 42 (

a) that the judge state the facts upon which he relied, and certify that they occurred in his presence and that he witnessed them personally, has not been satisfied. There is no basis upon which we may dispense with this requirement. The judge was faced with a tumultuous, confused, and confusing situation. It might have been difficult for him to immediately draw a certificate specifically describing the improper conduct of each defendant. But this does not justify the procedure followed.

First, to the extent that the problem was lack of time, he could have cited and punished the defendants for contempt immediately but prepared the certificate at his leisure. See, e. g., MacInnis v. United States, 191 F.2d 157, 160 (9th Cir. 1951); United States v. Hall, 176 F.2d 163, 168 (2d Cir. 1949). The function of the certificate is not to give notice to the defendant or to frame an issue to be tried, but solely to permit an appellate court to review the judge’s action. Second, if the situation was so confused that the judge could not clearly observe and accurately record what each defendant had done,

summary conviction was simply inappropriate. At we have noted, the theory of Rule 42(

a) is that no hearing is necessary because the judge already knows the facts. If he does not know the facts, a hearing is necessary to discover what the facts are. If, despite the uncertainty, no evidentiary hearing is had, the obvious risk is that innocent persons may be summarily adjudicated and punished. There was ample evidence from which the facts could have been determined— including testimony of the numerous marshals present in the courtroom, and a video tape recording of much of the proceeding. Such a hearing could have been held on Monday, entailing no more delay than actually occurred.

It is clear from the transcript that when the judge recessed on Thursday that was in fact his intention. The adjudications are vacated and the matters are remanded to the district court to conduct, in its discretion, proceedings pursuant to Rule 42(b), Fed.R. Crim.P. . Both certificates are attached as appendices. Each incorporates by reference the entire transcript. . The first contempt certificate cited defendants Marshall, Dowd, Kelly, Abeles, Lerner and Lippman. Defendant Stern was not cited.

The second contempt certificate cited those named in the first certificate with the exception of defendant Lerner and included defendant Stern. . 18 U.S.C. § 401 states in pertinent part: “A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as— “

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice. # * it . Rle 42, Fed.R.Crim.P., provides: “(

a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he 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. “(

b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (

a) of this rule shall be prosecuted on notice. The notice shall state the time and plaee of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled- to a trial by jury in any ease in which

an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial oi hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.” . A respected professional group recently recommended against the use of

summary procedure under any circumstances, stating, “such procedure has little to commend it, is inconsistent with the basic notions of fairness and is likely to bring disrespect upon the court.” ABA Standards, the Judge’s Role in Dealing with Trial Disruptions, § F.4 (Tentative Draft, May 1971). . For example, as noted later, the defendants’ refusal to come to the courtroom and Dowd’s alleged misconduct at the door of the reception room were not punishable under Rule 42(

a) because they were not personally observed by the trial judge; but if he had not revealed his specific reliance upon these incidents in his certificate, the error could not have been discovered on appeal. . Green v. United States, 356 U.S. 165, 188, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958). See also Yates v. United States, 356 U.S. 363, 366, 78 S.Ct. 766, 2 L.Ed.2d 837 (1958). . The authorities supporting this rule are legion. Many of the recent cases are collected at 3 C. Wright, Federal Practice & Procedure § 708, at 170. See, e. g., Pietseh v.

President of United States, 434 F.2d 861, 863-864 (2d Cir. 1970) ; Great Lakes Screw Corp. v. N.L.R.B., 409 F.2d 375, 379-80 (7th Cir. 1969) ; Tauber v. Gordon, 350 F.2d 843, 844-845 (3d Cir. 1965) ; United States v. Galante, 298 F.2d 72, 75 n. 1 (2d Cir. 1962) ; Parmelee Transp. Co. v. Keeshin, 294 F.2d 310, 314-315 (7th Cir. 1961) ; Parmelee Transp. Co. v. Keeshin, 292 F.2d 806, 809 (7th Cir. 1961) ; Widger v. United States, 244 F.2d 103, 107 (5th Cir. 1957). For earlier authorities see 154 A.L.R. 1227 (1945). .

It is possible that some of the misconduct specifically described in the first certificate is not relied upon. For example, the certificate recites that on Wednesday “defendant Abeles interrupted proceedings with a contumacious remark” (App. I at iii). The intent, however, seems to be to show that defendants were warned about any further misconduct. Again, in describing Thursday’s events, the first certificate recites defendants’ failure to appear in the courtroom and the incident in the hallway. It then notes Marshall’s remarks to the jury.

The very next paragraph, however, speaks only of “[t]he gross misconduct of defendants in refusing * * * to come to the courtroom, and their misconduct in the corridor” (App. I at v). As there is no further mention of the Marshall incident, it is arguable that it is not being relied upon. Nor is it clear that the misconduct of all defendants in the hallway is being relied upon. While the certificate includes all defendants by reciting “their misconduct in the corridor” (App. I at v), it names only three of them in describing the disturbance (App.

I at v). . “The trial judge saw and heard misconduct of defendants in the courtroom frequently every day for ten days prior to Thursday, December 10, 1970, consisting of: Standing, vocal and obviously prearranged demonstrations by spectators, sometimes led by one or more defendants and joined in by all; shouting epithets, sometimes threats of violence and profanity, and other improper language accompanied by a variety of disorderly movements and actions; interruptions by one or more or all defendants in qualification of the jury, exercise of challenges, opening statement for the plaintiff, examination of witnesses, offering of exhibits, making and hearing of objections, rulings and statements of the Judge, and in various other phases of trial proceedings” (App.

I at v). . Pietseh v. President of United States, 434 F.2d 861, 864 (2d Cir. 1970) ; Great Lakes Screw Corp. v. N.L.R.B., 409 F.2d 375, 379-380 (7th Cir. 1969) ; United States v. Schiffer, 351 F.2d 91, 94 (6th Cir. 1965) ; Tauber v. Gordon, 350 F.2d 843, 845 n. 1 (3d Cir. 1965) ; United States v. Galante, 298 F.2d 72, 75 n. 1 (2d Cir. 1962) ; Parmelee Transp. Co. v. Keeshin, 294 F.2d 310, 314 (7th Cir. 1961) ; Parmelee Transp. Co. v. Keeshin, 292 F.2d 806, 809 (7th Cir. 1961) ; Hollinan v. United States, 182 F.2d 880, 882 (9th Cir. 1950). . United States v. Schiffer, 351 F.2d 91, 94 (6th Cir. 1965) ; Widger v.

United States, 244 F.2d 103, 107 (5th Cir. 1957) ; MacInnis v. United States, 191 F.2d 157, 161 (9th Cir. 1951) ; 3 C. Wright, Federal Practice & Procedure § 708, at 170-71. . Even if all convicted defendants participated in the disturbance, it seems likely that some were more culpable than others and hence deserve harsher punishment. By demonstrating which defendant did what, a hearing would provide a basis for informed sentencing. . As noted earlier, the second certificate shows that the misconduct relied upon included some that occurred after the judge left the courtroom.

It would therefore be necessary, at the least, to remand for resentencing. If the defendants were to receive their just punishment, there would also have to be a hearing under Rule 42(

b) as to the misconduct that the judge did not witness personally. . The trial judge was the frequent target, during both the criminal trial and the proceedings on December 14, of numerous opprobrious epithets and insulting characterizations. Since the need no longer exists for immediate penal vindication of the dignity of the court, we suggest that the trial judge give serious consideration to the decided advantages of having another judge conduct further proceedings. See Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). Justice must also satisfy the appearance of justice.