Unpublished Disposition, 886 F.2d 334 (9th Cir. 1988)

MEMORANDUM^** 

On July 5, 1988, the district court summarily held attorney Gerson Horn in contempt and fined him $100. Horn has appealed and filed a brief and transcript. The United States Attorney has declined to appear. We reverse.

* On July 5, 1988, Horn had a matter on Chief Judge Real's calendar. According to Horn, he reported to Judge Real's courtroom; he noted that his client's case was listed as "Number 32" on the calendar; he then informed Assistant U.S. Attorney Robinson that he needed to attend to a matter before Judge Wilson "very briefly, and would be right back." When the case was called, Robinson informed the court of Horn's absence. Horn claims that he did not advise the clerk of his departure because "the clerk sits right in front of the bench, and had [I] tried to approach the clerk, that would have disrupted the on-going proceedings." Horn stated he was absent for only about 10 minutes. When the case was called a second time, Judge Real asked Horn to explain his absence, listened to his response, and then ordered him to pay $100 "as a sanction." Prior to imposing this sanction, the court did not notify Horn that he was being prosecuted for criminal contempt.

Although Horn has paid the $100 fine, his appeal is not moot, since there is at least a possibility that the contempt conviction will have collateral consequences. See Sibron v. New York, 392 U.S. 40, 55 (1967) (the Court "acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences. The mere 'possibility' that this will be the case is enough to preserve a criminal case from ending 'ignominiously in the limbo of mootness.' "); United States v. Lee, 720 F.2d 1049, 1054 (9th Cir. 1983) (citation omitted) ("although the sentence has been served, the case is not moot as a criminal conviction has collateral consequences. This is particularly true for an attorney convicted of criminal contempt of court, whose professional stature may be affected by the conviction."); Jessup v. Clark, 490 F.2d 1068, 1070 (3d Cir. 1973) (court held that an attorney's appeal of a criminal contempt conviction was not moot, because the conviction might lead to or affect the outcome of disciplinary proceedings).

Federal Rule of Criminal Procedure 42(a) provides that a criminal contempt may be punished summarily only "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." Ruled 42(b) states that " [a] criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense...."

Since the district court did not notify Horn that he was being prosecuted for contempt or provide him with any time in which to prepare a defense, we construe the district court's imposition of a $100 fine as a summary finding of contempt under Rule 42(a). However, Rule 42(a) requires the district judge to certify that he "saw or heard the conduct constituting the contempt." "The [certification] requirement is not simply a legal formality. Rather, the certificate provides the basis for informed appellate review." Matter of Contempt of Greenberg, 849 F.2d 1251, 1254 (9th Cir. 1988). Since the district court never certified that it saw or heard the conduct constituting contempt, we must reverse the judgment of the district court holding Horn in criminal contempt.

REVERSED.