Unpublished Disposition, 937 F.2d 613 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 613 (9th Cir. 1989)

NATIONAL ABORTIONS FEDERATION, Plaintiff-Appellee,v.Jeffrey W. BARNES, Defendant-Appellant.

No. 89-56091.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1991.* Decided July 1, 1991.

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.


Jeffrey W. Barnes appeals pro se a district court order finding him in civil contempt for disobeying a temporary restraining order and preliminary injunction barring the Operation Rescue organization's protest activities. Barnes contends that based on the evidence produced at the contempt hearing, the district court erred in finding that he had actual knowledge of the preliminary injunction. We have jurisdiction under 28 U.S.C. § 1291, Portland Feminist Women's Health Center v. Advocates for Life, 877 F.2d 787, 789 (9th Cir. 1989), and affirm.1 

* The appellees argue that Barnes's failure to file a record on appeal requires dismissal of this appeal. This contention lacks merit.

"If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence ... the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." Fed. R. App. P. 10(b) (2). We may dismiss an appellant's pro se appeal where the appellant fails to include in the record a transcript to support his claim that the trial court's finding and judgment was unsupported by the evidence. See Thomas v. Computax Corp., 631 F.2d 139, 143 (9th Cir. 1980).

The appellees argue that Barnes has presented to this court only the barest and most self serving excerpts from the record below. Nevertheless, Barnes does include as part of his opening brief witness' testimony relevant to his contention that the evidence was insufficient to support the district courts finding and judgment. He therefore has complied with Fed. R. App. P. 10(b) (2).


Barnes's contention that the district court erred in determining that he had notice of the preliminary injunction lacks merit.

We review the district court's decision to impose sanctions for contempt for an abuse of discretion. In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1363 (9th Cir. 1987). " [A] contempt order will not be reversed unless we have a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached after it weighed the relevant factors." Id.

A review of the trial transcripts reveals that Barnes was substantially involved in Operation Rescue, was responsible for security at the rally at which the injunction was read in its entirety, and spoke at the rally. Barnes described himself as an "insider" at Operation Rescue and had a large number of arrests from other "rescues". Based on these circumstances, the trial court did not commit clear error in finding that Barnes knew about the injunction and violated it.


Barnes contends that the district court erred in denying his request to substitute himself as pro se counsel. We review for an abuse of discretion, United States v. Wagner, 834 F.2d 1474, 1481 (9th Cir. 1987), and affirm.

Barnes was represented by counsel during the entire contempt proceedings. On August 8, 1989, Barnes's lead counsel advised the district court that his associate counsel would act as counsel for Barnes for the remainder of the hearing.2  The district court found that the association in of counsel would not prejudice either side. Furthermore, Barnes has failed to produce any evidence suggesting that he suffered any prejudice from the district court's denial to substitute counsel. Barnes's lead counsel was given the opportunity to and did deliver a closing argument. Moreover, both sides filed extensive proposed findings of fact and conclusions of law following the contempt proceedings. Accordingly, we cannot say the district court abused its discretion by denying Barnes's request to substitute counsel.


Barnes also contends that the district court erred in denying his request for a recess in the proceedings to confer with his "new" counsel. This contention lacks merit.

Barnes argues that he requested a brief recess in order to discuss with his attorney the introduction of an exculpatory video tape. Barnes also argues that "the effect of not allowing defendant a recess made the redirect testimony and closing argument of his new council worthless." Yet, Barnes fails to explain how the denial of a brief recess in the proceedings rendered his attorney's redirect examination and closing argument worthless. Furthermore, Barnes had ample opportunity prior to and during the proceedings to discuss trial strategy with his attorney. Accordingly, the district court did not err in dismissing Barnes's request for a recess.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th 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 9th Cir.R. 36-3


A contempt judgment against a non-party in a pending suit is considered final. Portland Feminist Women's Health Center Advocates for Life, 877 F.2d 787 at 789


Contrary to Barnes' contention, the district court did not appoint new counsel for Barnes. Instead, the district court allowed an associate counsel, who previously had been associated in as counsel without objection from Barnes, to represent Barnes for the remainder of the proceedings


The parties' requests for attorneys fees are denied