Unpublished Disposition, 897 F.2d 533 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 897 F.2d 533 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Frank D'AMBROSIO, Defendant-Appellant.In re GRAND JURY PROCEEDINGS.Frank D'AMBROSIO, Witness-Appellant,v.UNITED STATES of America, Appellee.

Nos. 89-10640, 90-10077.

United States Court of Appeals, Ninth Circuit.

Submitted March 2, 1990.* Decided March 7, 1990.

Before WALLACE, SNEED and LEAVY, Circuit Judges.


MEMORANDUM** 

Appellant Frank D'Ambrosio is the target of a criminal investigation in the Eastern District of California. D'Ambrosio is suspected of preparing false tax returns in violation of 26 U.S.C. § 7206(2).

On September 21, 1989 D'Ambrosio refused to provide handwriting exemplars in response to a grand jury subpoena. D'Ambrosio claimed that he had previously provided exemplars. The government claimed that the previous exemplars were disguised.

On September 27, 1989 the district court ordered D'Ambrosio to provide additional and nondisguised exemplars. D'Ambrosio provided new exemplars. The government, however, asserted that the new exemplars were also disguised. On October 18, 1989, the district court ordered D'Ambrosio to show cause why he should not be held in contempt for failure to provide nondisguised exemplars.

The district court held a hearing on October 30, 1989, and found that D'Ambrosio had provided disguised handwriting exemplars. The court again ordered him to provide nondisguised handwriting exemplars.1  On November 1, 1989, D'Ambrosio provided a new set of handwriting exemplars.

On December 4, 1989, the district court again ordered D'Ambrosio to show cause why he should not be held in contempt.

On January 30, 1990, the district court decided that the November 1, 1989 exemplars were disguised, and held D'Ambrosio in contempt. The district court ordered D'Ambrosio committed to the custody of the marshal until he provided nondisguised handwriting exemplars. On February 5, 1990, D'Ambrosio filed a timely notice of appeal from the order of January 30, 1990.2 

D'Ambrosio contends that the district court finding of contempt was not supported by clear and convincing evidence. We review the district court's adjudication of contempt for abuse of discretion. United States v. Grant, 852 F.2d 1203, 1204-05 (9th Cir. 1988). We review the district court's factual findings for clear error. Kruso v. International Telephone and Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989); Ahern v. Central Pacific Freight Lines, 846 F.2d 47, 48 (9th Cir. 1988).

D'Ambrosio contends that the expert evidence regarding his handwriting exemplars does not rule out explanations for his writing patterns other than that he disguised his handwriting and thus that the adjudication of contempt is not supported by clear and convincing evidence.

On November 1, 1989, D'Ambrosio provided 53 handwriting exemplars.3  James A. Tarver, a questioned document examiner employed by the Fresno County Sheriff's Department, examined the exemplars and concluded that D'Ambrosio's handwriting "exhibits inconsistent characteristics that are often associated with unnatural or disguised writing." On January 19, 1990, Tarver testified that:

[C]haracteristics that were inconsistent with regard to the overall size of the writing. There was tremor. The slant of the writing changed within individual words, within individual sentences and within pages of the handwriting exemplar material that was issued.

Tarver also testified that the characteristics he observed could not have been caused by a neurological disorder such as Parkinson's Disease. Tarver did testify that the exemplars could have been the product of a severe orthopedic injury.

However, Internal Revenue Service Agent John Rialon testified that when he obtained the exemplars from D'Ambrosio, he did not complain of any injury to his writing hand, nor did he wear a cast or any other device which would result in unnatural writing. Thus, the evidence did not support a finding that the inconsistent writing was caused by an organic problem. Therefore, the district court did not clearly err in determining that severe orthopedic injury was not a cause of the unnatural writing. Accordingly, the district court did not abuse its discretion by holding D'Ambrosio in contempt.

D'Ambrosio also contends that the district court erred in not allowing the contempt proceeding to be held in public. This court reviews the district court decision to exclude the public from the hearing de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir. 1989), cert. denied, 469 U.S. 824 (1984).

Due process does not require public proceedings where the contemnor did not object to the exclusion of the public. Id. at 616-619. See Levine v. United States, 362 U.S. 610 (1960). Here, D'Ambrosio did not object to the exclusion of the public and thus, the exclusion of the public did not violate due process.

AFFIRMED.

 *

The panel unanimously agrees that this case is appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and Ninth Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

A written order setting forth this holding was filed on November 6, 1989. On December 6, 1989, D'Ambrosio filed a timely notice of appeal from the district court's November 6, 1989 order

 2

On December 6, 1989, D'Ambrosio filed a notice of a appeal from the November 6, 1989 order. D'Ambrosio contends that the filing of the December 6, 1989 notice of appeal divested the district court of jurisdiction and thus, the district court lacked jurisdiction to hold him in contempt on January 30, 1990

The filing of a notice of appeal does not divest the district court of jurisdiction if the order appealed from is not a final appealable order. United States v. Ray, 731 F.2d 1361, 1369 (9th Cir. 1984). The November 6, 1989 order did not sanction D'Ambrosio and thus was not immediately appealable. Donovan v. Mazzola, 761 F.2d 1411, 1417 (9th Cir. 1985). Therefore, the district court had jurisdiction to hold D'Ambrosio in contempt. Accordingly, we dismiss appeal No. 89-10640, the appeal from the November 6, 1989 order, for lack of jurisdiction.

 3

D'Ambrosio had provided 38 exemplars at an earlier date that were found to be disguised on October 30, 1989