United States of America, Appellee, v. Nicholas Allocco, Defendant,ronald Rubinstein, Esq., Appellant, 994 F.2d 82 (2d Cir. 1993)

Bridget M. Rohde, Brooklyn, NY, Asst. U.S. Atty., E.D.N.Y. (Mary Jo White, U.S. Atty., E.D.N.Y., Susan Corkery, Asst. U.S. Atty., E.D.N.Y., of counsel), for appellee.

John L. Pollok, New York City (Hoffman & Pollok, of counsel), for appellant.

Before: McLAUGHLIN and FEINBERG, Circuit Judges, and TENNEY, District Judge.^* 

TENNEY, Senior District Judge:

Ronald Rubinstein, Esquire, appeals from a summary criminal contempt order entered in the Eastern District of New York, Spencer Williams, District Judge, of the Northern District of California, sitting by designation, issued after the judge repeatedly warned Rubinstein to cease a certain line of questioning during the cross-examination of a government witness. The contempt order entered against appellant imposed a conditional fine of $5000, which, if paid to Brooklyn Law School, would purge the contempt.

On appeal, Rubinstein claims that the contempt order was improperly entered in the first instance, that even if it was proper the fine was too high, and that the "purgation provision" added to the order by Judge Williams was inappropriate.

For the reasons set forth below, we affirm the entry of the contempt order, but reduce the fine and vacate the purgation provision.

BACKGROUND

Rubinstein defended Nicholas Allocco against charges of mail fraud at a jury trial. Allocco was accused of inflating insurance claims for damages to his warehouse, a wood-frame building located at 989 Wyckoff Avenue ("989 Wyckoff") that was damaged by arson. The government attempted to show that Allocco fraudulently obtained insurance for 989 Wyckoff by initially stating that he wanted to insure a secure, non-combustible building at 149-05 177th Street ("the 177th Street property"), and then transferring the insurance to 989 Wyckoff. The government's second witness, Anthony Palese, occupied the building on the 177th Street property, and rented out parts of the building. The prosecution questioned him for only a brief time, establishing that he had never rented to Allocco, and that Allocco had no legal justification for listing the building on his insurance policy and later shifting the insurance to 989 Wyckoff. Tr. 52-53.

Rubinstein asked questions on cross-examination that drew objections from the prosecution as outside the scope of direct. Judge Williams sustained the objections, which were first raised when Rubinstein asked Palese about the terms of his lease. The government was directed to give the defense a copy of the lease for the 177th Street property, and Rubinstein was directed to avoid the subject of the lease. The court made it clear in the exchange (set out below in relevant part) that Rubinstein could recall the witness later, but could not question the witness about the lease on cross-examination.¹ 

Rubinstein asked at least one more question about Palese's lease, and again the government's objection was sustained. Tr. 59-60. He then asked Palese whether his family had known the defendant in the past. After the government objected on the basis of relevance, the court sustained the objection, stating in a sidebar that Rubinstein was not to discuss the lease. Rubinstein explained that he was not asking about the lease, but was trying instead to establish that his client had kept videotapes at the witness's warehouse, and that Palese was lying when he said there was no relationship between him and Allocco. The court responded, "That's part of your case, that's not the government's case." The court sustained the government's objection, telling Rubinstein he could recall the witness and impeach him at that time.² 

Rubinstein then questioned Palese about the warehouse, and after objection, the judge stated that Rubinstein could recall the witness to introduce the evidence about which he had been questioning him.³  After the court cut off Rubinstein for a fifth time, Tr. 65, Rubinstein--evidently oblivious to the judge's directives--again asked Palese about the defendant's videotapes and whether they were transferred to the 177th Street warehouse at any time. Following an objection, the court excused the jury and held Rubinstein in contempt, fining him $5,000.⁴ 

Rubinstein moved for reconsideration of the contempt order. On rehearing, the court filed the contempt order, adding the creative proviso that Rubinstein could purge the order by giving $5000 to Brooklyn Law School. Order of Judge Spencer Williams of October 15, 1992 ("October 15 Order"), at 3-4.

DISCUSSION

I. Propriety of the Contempt Finding

A judge is empowered to issue a summary criminal contempt order under 18 U.S.C. § 401 (1982), and Rule 42(a) of the Federal Rules of Criminal Procedure regulates this power. In order to warrant a contempt finding,

the contemnor's conduct must constitute misbehavior which rises to the level of an obstruction of and an imminent threat to the administration of justice, and it must be accompanied by the intention on the part of the contemnor to obstruct, disrupt or interfere with the administration of justice.

In re Williams, 509 F.2d 949, 960 (2d Cir. 1975) (citing Eaton v. City of Tulsa, 415 U.S. 697, 94 S. Ct. 1228, 39 L. Ed. 2d 693 (1974)). Where a judge has directed an attorney not to discuss certain issues, the order must be sufficiently clear that an attorney can discern what conduct falls within its scope. See United States v. Giovanelli, 897 F.2d 1227, 1231 (2d Cir.), cert. denied, 498 U.S. 822, 111 S. Ct. 72, 112 L. Ed. 2d 46 (1990).

The order in this case was clear to Rubinstein. In the sidebar referred to above, Rubinstein explained that he was not talking about the lease for the 177th Street property, and that he wanted to question Palese about videotapes. The court sustained the government's objection that questions about the videotapes were beyond the scope of direct as well; by then, it should have been clear to Rubinstein that the order not to bring up matters beyond the scope of direct included any discussion about the tapes. Even if Rubinstein felt that the order was unreasonable, it was nonetheless clear; any objection he had to the order simply should have been preserved on the record, rather than voiced by continuing with the offending line of questions. See Maness v. Meyers, 419 U.S. 449, 458-60, 95 S. Ct. 584, 590-92, 42 L. Ed. 2d 574 (1975).

The judge had sufficient evidence before him to find that Rubinstein had the requisite intent to violate the court's order; Rubinstein's behavior did not merely constitute "overzealous cross-examination" as he claims. Rubinstein cross examined the witness for far longer than the prosecution, on issues unrelated to direct examination. Despite Judge Williams's offer to allow Rubinstein to call Palese back during presentation of his own case, Rubinstein continued to question the witness about the videotapes. Tr. 65.

Rubinstein argues that his behavior did not constitute an "imminent threat to the administration of justice." He contrasts his own behavior to that of the defense attorney in United States v. Lumumba, 794 F.2d 806 (2d Cir.), cert. denied, 479 U.S. 855, 107 S. Ct. 192, 93 L. Ed. 2d 125 (1986), who admittedly acted more often and more severely in testing the judge's patience. The defense attorney in Lumumba at one time called the judge a "disgusting bigoted practical joke," and at another, when he was dissatisfied about a particular ruling, stated that "we would look for a better performance from the court in the future." See id. 794 F.2d at 813.

However, the fact that Rubinstein's behavior did not consist of calling the judge names, or making loud disturbances, does not mean that he is free from a contempt finding. The simple fact is that Rubinstein disturbed the orderliness of the proceedings, in defiance of a clear court order.

II. Excessiveness of the Fine

Although the lack of physical disturbance in court does not vitiate the contempt finding, it suggests that the fine may have been excessive. As one court has pointed out, "the punishment imposed should bear some reasonable relation to the nature and gravity of the contumacious conduct." United States v. Conole, 365 F.2d 306, 308 (3d Cir. 1966) (emphasis added), cert. denied, 385 U.S. 1025, 87 S. Ct. 743, 17 L. Ed. 2d 673 (1967).

In United States v. Ruggiero, 835 F.2d 443, 446 (2d Cir. 1987), we reduced a fine from $10,000 to $2,000, although the behavior of the criminal defendant was far more disruptive than Rubinstein's. The defendant had repeatedly interrupted the judge, purporting to assert his constitutional rights, when in fact all he did was cause disturbances to the court. The judge fined him $10,000. Id. at 445 n. 2. Noting that the sanction was the first imposed at the trial, we reduced the fine, exercising our "special responsibility" to ensure that the contempt power not be abused. See id. at 446 (quoting United States v. Gracia, 755 F.2d 984, 989 (2d Cir. 1985)).

Although there is sufficient evidence to uphold the contempt finding, we reduce the fine for several reasons. Rubinstein was not physically disruptive; the judge praised him later for his overall conduct, see October 15 Order at 3; and this was the first (and only) sanction imposed in the case. See Ruggiero, 835 F.2d at 446. We exercise our "special responsibility" by reducing the fine to $500, in order to ensure that the fine is commensurate with the gravity of the behavior.

III. The Purgation Provision

The government concedes that the purgation provision should be vacated, because it is inappropriate under 18 U.S.C. § 401. Criminal contempt orders are punitive in nature, whereas a purgation provision applies more properly to a civil contempt finding. It allows the offender to comply with a court order. In this case, compliance was no longer possible since the offending conduct was long past, and the provision was unhelpful. See In re Irving, 600 F.2d 1027, 1031-32 (2d Cir.), cert. denied, 444 U.S. 866, 100 S. Ct. 137, 62 L. Ed. 2d 89 (1979).

While we admire Judge Williams's philanthropic inclination, the concept of using contempt as a vehicle to benefit a third party completely unrelated to the litigation is one that seriously diverges from the principle behind the contempt power. See In re Kave, 760 F.2d 343, 352 (1st Cir. 1985) (recognizing "the general rule that a punitive fine is paid into the coffers of a court and a civil fine is paid to the aggrieved party to compensate for its losses"). Therefore, with apologies to Brooklyn Law School, the purgation provision must be stricken.

CONCLUSION

The district court's order holding petitioner in contempt is hereby affirmed, but the fine is reduced to $500, and the purgation provision is vacated.