United States of America, Plaintiff-appellee, v. Jonathan Scott Baldwin, et al., Defendants.in Re Steven Jackson, Esquire, Appellant, 770 F.2d 1550 (11th Cir. 1985)

Appellant, Steven F. Jackson, an attorney, appeals a judgment of criminal contempt, 18 U.S.C. § 401(3),¹  imposed upon him pursuant to Federal Rule of Criminal Procedure 42(a), for stating that he would not follow a court order, and then failing to appear to represent his client as ordered by the court. 592 F. Supp. 149 (S.D. Fla. 1984). Finding that the court below properly found appellant in criminal contempt, we affirm.

Appellant was the lawyer for Howard Jones, one of nine codefendants in a federal criminal case. On February 27, 1984, the district court held a calendar call in order to set the trial date. The parties estimated that the trial would last three to four weeks. At that time, the court inquired as to the dates in April or May when the lawyers for the various defendants would be unavailable. Jackson responded: "I don't have any vacation planned, but I do have a trial in New York, first week of April. After that, I have no objections to any of the time in those two months." The judge set the trial to begin on Monday, April 16, 1984.

On April 12, 1984, the Thursday preceding the Monday on which the trial was to begin, Jackson's brother, Jeffrey Jackson, attended a pretrial hearing in his brother's place. Jeffrey Jackson orally advised the district court that Steven Jackson was ready for trial, but that he would not be available for trial Tuesday and Wednesday of the next week and Monday and Tuesday of the following week because he would be observing Passover, a Jewish holiday. The judge responded that he had never before received such a request, but that he always recessed court by sundown so that everyone could be home in time for Passover. Jeffrey Jackson said that he would so advise his brother.

On the following Monday, the day the trial was scheduled to begin, Jackson filed a written motion to stay all proceedings on that Tuesday and Wednesday and the following Monday and Tuesday. This motion was based on the free exercise clause of the first amendment. Jackson told the court that he was an observant Jew, that these days were the first and last two days of Passover which were equal in station to the highest of the Jewish holy days, and that it had been his practice since childhood to follow Jewish law that no work be done on those days. Jackson further stated that if the trial proceeded in his absence his client would be unduly prejudiced. The court denied Jackson's motion, but stated that the court would adjourn early for Passover. The court explained that with a nine-defendant, three to four week trial, the case could not be rescheduled at that point in time.²  In response Jackson stated: "I just want to inform the court that with due deference to your ruling, I will not be here tomorrow and Wednesday or Monday and Tuesday of next week." The court warned Jackson that it would consider whether to send a marshal to bring him.

Following the lunch recess that day, the court asked Jackson's client, Jones, whether he would object to one of the other lawyers filling in on the days that Jackson was absent. Jones stated that he had no objection. However, after Jones conferred with Jackson, Jackson informed the court that he could not adequately represent Jones unless he was present throughout the proceedings, and that Jones would object to another lawyer filling in. The court then suggested that Jackson could get a transcript of the missed testimony. Jackson declined this offer. The other defendants' lawyers explored the possibility of one of them representing Jones. Again, Jackson found this alternative unacceptable. The court also offered to recess at four p.m. or anytime during the day that Jackson had to attend religious services. Jackson maintained that he could not work at all during these days.³  The court specifically ordered Jackson to be at court the following day or he would be subject to contempt and criminal sanctions.

At around four o'clock that afternoon, after the jury had been partially selected, the court recessed so that any lawyers or jurors who wished to do so could return home for Passover. The court again told Jackson that it would not grant a stay given the size and expense of the trial. The court urged Jackson to appear and stated that it would consider a failure to attend in direct defiance of a court order. Jackson again advised the court that he would not attend the trial the next day:

JACKSON: With all due respect, Your Honor, I answer to a higher authority than this court in this matter and I will not be here tomorrow.

JUDGE: Well, act at your peril.

The next morning, the trial resumed and the jury selection continued. Jackson did not appear. The court found that Jackson had committed contempt twice on April 16 when he stated on two occasions that he would not obey the court's order to appear; the court also found that the contempt had been ratified that morning when Jackson failed to appear. The court stated that it would issue a certificate of contempt as soon as it was typed and would then give Jackson an opportunity to be heard. Next, the court addressed the problem of Jones' representation. After some delay, the court was able to find a lawyer who would agree to represent Jones at that late date. That evening, the court issued a certificate of contempt finding that Jackson had committed contempt twice on April 16 and that this contempt had continued on April 17. The certificate stated that the court did not doubt Jackson's representation of his religious practices and concluded:

Despite what attorney Jackson thinks about this matter, it is not a case involving Mr. Jackson's exercising of his religious practices. It is a case of an officer of the court who failed to advise the court in ample time of his scheduled conflicts, especially after having assured the court when the trial date was selected that he had none in April or May. His defiance of the court's order denying his motion for stay constitutes contempt.

The order also set a hearing on the matter for April 19.

Jackson appeared on April 19, represented by counsel. The judge stated that he had filed the certificate of contempt, but would afford Jackson the opportunity to explain his conduct at that time. Jackson's counsel argued that the court should vacate its certificate of contempt because the court had not afforded Jackson an opportunity to be heard prior to finding him in contempt as required by Federal Rule of Criminal Procedure 42(b), and because Jackson lacked the requisite criminal intent. In addition, Jackson's lawyer proffered evidence on the importance of the first and last two days of Passover, but was not permitted to introduce the testimony of two rabbis on this issue. The court found that such evidence was not relevant, as the court did not question Jackson's religious practice or his devotion to his religion.

Jackson testified next. He admitted that Passover occurred in March or April of each year. He further admitted that "perhaps" he had been "tarry in informing the court" that he could not be present during Passover, but stated that he had never before had a request for a continuance due to a religious holiday denied. The court stated that had Jackson filed the motion when he should have, it would have been easy to rearrange the court's calendar, but that his failure to do so fell pitifully short of his responsibility as a lawyer. The court then fined Jackson $1,000.

The court chose to punish Jackson's actions summarily, pursuant to Federal Rule of Criminal Procedure 42(a)⁴  rather than under Federal Rule of Criminal Procedure 42(b).⁵  We recently described the difference between summary and nonsummary contempt in Matter of Heathcock, 696 F.2d 1362 (11th Cir. 1983):

Historically, there are two types of criminal contempt: direct and indirect. Direct contempt is committed in the "actual presence of the court." See Nye v. United States, 313 U.S. 33, 61 S. Ct. 810, 85 L. Ed. 1172 (1941); United States v. Marshall, 451 F.2d 372 (9th Cir. 1971). "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." United States v. Marshall, 451 F.2d at 373. Both contempt classifications under Fed. R. Crim. P. 42(a) and (b) require two separate procedures for trying and punishing contumacious behavior. Direct contempt provides for summary disposition; indirect contempt requires notice and hearing. United States v. Willett, 432 F.2d 202, 204 (4th Cir. 1970); 8B Moore's Federal Practice p 42.04 (2d ed. 1981).

Id. at 1365 (footnote omitted). "The power to summarily hold an individual in direct criminal contempt operates to vindicate the authority of the court and stands as a bulwark against disorder and disruption in the courtroom." Sandstrom v. Butterworth, 738 F.2d 1200, 1208-09 (11th Cir. 1984), cert. denied, --- U.S. ----, 105 S. Ct. 787, 83 L. Ed. 2d 781 (1985) (footnote omitted). There are two justifications for summary contempt: "First, because in a direct contempt the judge has observed the contemptuous act, there is 'no need of evidence or assistance of counsel before punishment.' Cooke v. United States, 267 U.S. 517, 534, 45 S. Ct. 390, 394, 69 L. Ed. 767 (1925). Second, the maintenance of courtroom decorum sometimes necessitates quick and forceful action. Id." Id. (footnote omitted). Because summary contempt allows the court to punish the contemnor without benefit of numerous procedural protections, we have determined that it is only appropriate in narrowly defined circumstances. Matter of Heathcock, 696 F.2d at 1365; United States v. Brannon, 546 F.2d 1242, 1248 (5th Cir. 1977).⁶ 

Appellant argues that summary contempt was inappropriate in this case for numerous reasons. First, appellant claims that Rule 42(a) is "limited to those severe circumstances ... where someone is so disruptive to the court in the middle of the trial that the court must invoke extraordinary authority to keep the proceedings moving." Jackson claims that his conduct did not rise to this level. This argument need not detain us for long. In United States v. Wilson, 421 U.S. 309, 95 S. Ct. 1802, 44 L. Ed. 2d 186 (1975), a case concerning two witnesses who refused to answer questions during the course of a criminal trial, the Supreme Court announced that the contemptuous actions need not be delivered in a rude manner in order to fall within Rule 42(a). The Court stated:

Respondents' refusals to answer, although not delivered disrespectfully, plainly fall within the express language of Rule 42(a), and constitute contemptuous conduct. Rule 42(a) was never intended to be limited to situations where a witness uses scurrilous language, or threatens or creates overt physical disorder and thereby disrupts a trial. All that is necessary is that the judge certify that he "saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court."

Id. at 314-15, 95 S. Ct. at 1805-06.

Appellant's next argument, that the disturbance caused by his absence was minor, and thus unworthy of summary contempt, is also unpersuasive.⁷  The disruption caused by Jackson's conduct was severe. During the first two days of trial, the court spent a significant amount of time dealing with Jackson's refusal to attend the trial and represent his client.⁸  The members of the jury venire, the lawyers for the other defendants, and the defendants, especially Jackson's client,⁹  were greatly inconvenienced at considerable public expense--in addition to the fact that the trial judge was both inconvenienced and had his authority undermined by appellant's refusal to follow a direct court order. Like Wilson, this case involved an ongoing trial, and Jackson's behavior caused the trial to come to a halt.¹⁰  Jackson's "refusals were contemptuous of judicial authority because they were intentional obstructions of court proceedings that literally disrupted the progress of the trial and hence the orderly administration of justice." Wilson, 421 U.S. at 315-16, 95 S. Ct. at 1806-07 (footnote and citation omitted). As in Wilson, time was "of the essence" given the ongoing nature of the proceedings. Id. at 319, 95 S. Ct. at 1808. The Wilson Court noted the severity of this kind of disturbance:

Trial courts ... cannot be expected to dart from case to case on their calendars any time a witness who has been granted immunity decides not to answer questions. In a trial, the court, the parties, witnesses, and jurors are assembled in the expectation that it will proceed as scheduled. Here the District Judge pointed out this problem when defense counsel asked for a continuance; he said: "I think we cannot delay this trial. I cannot delay it. I have many other matters that are equally important to the people concerned in those cases which are following."

Id. at 318-19, 95 S. Ct. at 1807-08. We see no reason to treat an attorney who fails to appear to ask questions more leniently than a witness who refuses to answer questions. Moreover, the case before us presents an even more compelling factual scenario than Wilson because of the number of people involved and the inevitable problems that would arise from an attempt to reschedule or even delay this trial.

The court below found that appellant's two statements on April 16 that he would not follow the court's order constituted contemptuous conduct and that this contempt "continued" when appellant failed to appear on April 17. Appellant argues that his failure to appear cannot be punished summarily because it did not occur "in the actual presence of the court." Fed. R. Crim. P. 42(a). We agree with appellant that the failure to appear ordinarily does not subject one to summary contempt. See, e.g., United States v. Onu, 730 F.2d 253 (5th Cir.), cert. denied, --- U.S. ----, 105 S. Ct. 182, 83 L. Ed. 2d 116 (1984); Thyssen, Inc. v. S/S Chuen On, 693 F.2d 1171 (5th Cir. 1982); In re Allis, 531 F.2d 1391 (9th Cir.), cert. denied, 429 U.S. 900, 97 S. Ct. 267, 50 L. Ed. 2d 185 (1976); United States v. Delahanty, 488 F.2d 396 (6th Cir. 1973). But see In re Gates, 478 F.2d 998 (D.C. Cir. 1973); In re Niblack, 476 F.2d 930 (D.C. Cir.), cert. denied, 414 U.S. 909, 94 S. Ct. 229, 38 L. Ed. 2d 147 (1973). As explained in Thyssen, the essential reason for not summarily punishing a failure to appear "is that although the facts of the absence and the scheduling of the hearing are within the knowledge and presence of the court, nevertheless, ' [A]bsence, (tardiness) alone is not contempt. The reasons for the default are important.' " 693 F.2d at 1174-75 (citing In re Allis, 531 F.2d at 1392). The protection of Rule 42(b) is usually necessary because the judge normally does not know why the alleged contemnor did not appear. Id. at 1175; see also In re Oliver, 333 U.S. 257, 275-76, 68 S. Ct. 499, 508-09, 92 L. Ed. 682 (1948) (if judge must depend upon others for knowledge of essential elements, due process requires notice and a fair hearing); Delahanty, 488 F.2d at 398 ("While the absence of Appellants was obvious to the Court, the reasons for their absence were not."). In the present case, however, there was no such need to inform the court of the reason for Jackson's absence, as Jackson had already told the court why he would not be present on April 17, and that he was refusing to obey a court order. See Thyssen, 693 F.2d at 1175 (it is possible that where counsel has advised the court that he will not appear for a certain reason, the procedures of Rule 42(b) need not be followed); In re Niblack, 476 F.2d at 931-33 (lawyer who was nearly two hours late subject to summary contempt where he had been warned by the court numerous times about being on time).¹¹  Thus, the circumstances in this case render Rule 42(a) an appropriate method of punishing appellant's subsequent failure to appear. We stress, however, that this is a narrow ruling dependent upon the appellant's prior refusal to obey the court's order and his explanation of why he would not appear. Mere failure to appear, without prior explanation, should not be punished summarily.

Appellant next contends that his statements on April 16 did not constitute contempts because they were neither identified as contempts nor punished at the time of their occurrence. Rather, appellant argues, on April 16 the court merely threatened to find him in contempt if he failed to appear the next day. We disagree with appellant's analysis. Appellant's statements that he would not follow the court's order were contemptuous acts. The Supreme Court's words in Wilson are applicable here:

The face-to-face refusal to comply with the court's order itself constituted an affront to the court, and when that kind of refusal disrupts and frustrates an ongoing proceeding, as it did here, summary contempt must be available to vindicate the authority of the court as well as to provide the recalcitrant witness with some incentive to testify. In re Chiles, 22 Wall. 157, 168, 22 L. Ed. 819 (1875). Whether such incentive is necessary in a particular case is a matter the Rule wisely leaves to the discretion of the trial court.

421 U.S. at 316-17, 95 S. Ct. at 1806-07 (footnotes omitted). This is not a situation where the court waited until after the proceedings were over to find defendant in contempt summarily.¹²  See Taylor v. Hayes, 418 U.S. 488, 94 S. Ct. 2697, 41 L. Ed. 2d 897 (1974) (due process denied where final adjudication of contempt for counsel's actions during trial took place summarily after trial had concluded); Groppi v. Leslie, 404 U.S. 496, 92 S. Ct. 582, 30 L. Ed. 2d 632 (1972) (legislative resolution citing petitioner for contempt for conduct on floor of State Assembly, passed two days after allegedly contemptuous acts and without notice or opportunity to answer, violates due process); United States v. Brannon, 546 F.2d 1242 (5th Cir. 1977) (summary contempt inappropriate where not imposed upon witness who refused to answer questions until after closing arguments).¹³  Here, the court acted upon appellant's April 16 statements the very next day, when the statements were ratified by Jackson's failure to appear, and at a time when the court was still suffering from Jackson's actions because it had not yet found someone to represent Jones. See Wilson, 421 U.S. at 319, 95 S. Ct. at 1808. The court properly acted to vindicate its authority at that time.¹⁴ 

Finally, appellant argues that a hearing was necessary prior to his being held in contempt in order to provide him with an opportunity to show the religious importance of his absence. Such a showing was irrelevant, however, given the fact that the court accepted appellant's allegations of religious law and his sincerity in following his religion. Moreover, appellant was not held in contempt because he chose to exercise his religious beliefs; rather, the contemptuous acts flowed from appellant's failure to give the court adequate notice of his inability to appear. Passover is not an unpredictable event; it occurs in the spring of each year. Appellant had a duty to inform the court sufficiently before the trial in order to assert his first amendment rights.¹⁵  If the court, given adequate notice of appellant's religious convictions had, nevertheless, scheduled trial for the first and last two days of Passover, we would be faced with a first amendment question. In the present case, we are not.¹⁶  This situation is similar to one that recently confronted the Fifth Circuit when a state legislator, who was acting as defense counsel in a criminal trial, did not appear for trial because he was attending a legislative session. United States v. Onu, 730 F.2d 253 (5th Cir.), cert. denied, --- U.S. ----, 105 S. Ct. 182, 83 L. Ed. 2d 116 (1984). The Fifth Circuit found that the importance of appellant attending the legislative session was irrelevant. The court stated:

Requiring a lawyer to adhere to the proper orders of a federal court does not threaten legislative integrity. Senator Washington was not called suddenly to his legislative duties, the federal case was not precipitately assigned for trial. From the time he sought to enter an appearance in the case, in March, Washington knew or should have known of the trial date and of the scheduled, regular legislative session. He had ample time to communicate with the court in person and to seek an alternate trial date.

Id. at 257. Cf. United States v. Lespier, 558 F.2d 624, 627-28 (1st Cir. 1977) (lawyer's failure to appear because he was at a political conference, without taking "the smallest step of giving notice earlier," would have been "clearly punishable as criminal contempt"). Likewise, Jackson had more than ample opportunity to give the court notice of his religious needs.

Jackson argues that he lacked the requisite intent for criminal contempt because his actions were "premised upon" his religious beliefs. We disagree. "Criminal contempt is established when it is shown that the defendant is aware of a clear and definite court order and willfully disobeys the order." United States v. Rylander, 714 F.2d 996, 1001-02 (9th Cir. 1983), cert. denied, --- U.S. ----, 104 S. Ct. 2398, 81 L. Ed. 2d 355 (1984). As stated in Sykes v. United States, 444 F.2d 928 (D.C. Cir. 1971) (distinguishing knowing failure to appear from lapse of memory or confusion as to trial date), "An essential element of [criminal contempt] is an intent, either specific or general, to commit it. By definition, contempt is a 'willful disregard or disobedience of a public authority.' " Id. at 930. In criminal contempt, willfulness "means a deliberate or intended violation, as distinguished from an accidental, inadvertent, or negligent violation of an order." Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 782 (9th Cir. 1983).

In the present case, Jackson knew that his motion to stay the proceedings had been denied and that he had been told he must appear on April 17. The court twice warned him that if he failed to appear he would be subject to contempt. Jackson knew that he was telling the court that he would not obey its order on April 16, and he knew he was disobeying the court on April 17. Jackson's motive for disobeying the court is irrelevant as far as a finding of intent is concerned, rather it is the knowing failure to obey the court that forms the requisite intent.

For the foregoing reasons, the judgment of the district court is AFFIRMED.