A Lesson in Federal Contempt


Here is a thought-provoking little piece on Tom Kirkendall’s Houston’s Clear Thinkers blog about whether Chuck Rosenthal is in fact facing jail time for contempt in Judge Hoyt’s court.

The contempt proceeding is for indirect criminal contempt. It’s “indirect” because Chuck didn’t commit contempt right in front of Judge Hoyt, and it’s “criminal” because the contempt is completed — Judge Hoyt can’t hold Chuck in jail until he complies with the order. Tom’s argument is that Chuck can’t legally be held in contempt because he

has been provided none of the protections that due process of law requires for a criminal defendant. Inasmuch as Rosenthal’s allegedly contemptuous conduct did not take place in the courtroom, the trial judge does not have the power to hold him in criminal contempt without a full-blown trial on the criminal contempt charges. Indeed, the trial judge cannot even be the judge in Rosenthal’s criminal contempt trial because the judge is a potential witness in that trial.

Likewise, the plaintiffs’ lawyer in the civil lawsuit cannot prosecute a criminal contempt case against Rosenthal. Rather, the contempt charge must be referred to the U.S. Attorneys’ Office, which then decides whether to prosecute Rosenthal based on an evaluation of the evidence and and the charges. If the U.S. Attorney decides to do so, then Rosenthal is entitled to the due process protections that any criminal defendant is entitled to receive, including notification of the specific charges, trial by jury, and confrontation of the adverse witnesses. The circus going on right now over in federal court doesn’t come close to fulfilling those Constitutional safeguards.

It’s thought-provoking because for some reason I figured that Judge Hoyt and the lawyers involved knew what they were doing; silly me, that’s something I would never do if I were representing Chuck. I’m glad to be wrong because, more than I relish a prosecutor getting something he might well deserve, I enjoy seeing someone slip out of a jail cell by using procedure to his advantage.

Tom’s right in part and wrong in part. It appears (I’ve not yet had to defend anyone against contempt charges in federal court) that the rule that governs is Federal Rule of Criminal Procedure 42:

Rule 42. Criminal Contempt

(a) Disposition After Notice.

Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

(1) Notice.

The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a defense; and

(C) state the essential facts constituting the charged criminal contempt and describe it as such.

(2) Appointing a Prosecutor.

The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

(3) Trial and Disposition.

A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.

(b) Summary Disposition.

Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

Chuck has received procedural due process: notice and an opportunity to be heard. He’s getting to cross-examine the witnesses against him, and is getting to call his own witnesses. He’s not constitutionally entitled to a jury trial because he’s not facing more than six months in jail.

Chuck’s statutorily entitled to a jury trial (see 18 U.S.C.A. § 3691), but only on demand. He didn’t demand a jury trial, so he gave up that right.

But Judge Hoyt didn’t request that the government prosecute the contempt, and the court’s show-cause order, entered on January 2nd, didn’t “state the essential facts constituting the charged criminal contempt and describe it as such” as required by the rule. Nor did Judge Hoyt disqualify himself from presiding at the contempt trial, which argualby involves disrespect toward him.

Chuck’s lawyers haven’t raised any of these issues. They might have had to do so before the hearing (which is a rule of thumb) or they might be able to lie behind the log and claim error afterwards.

Can they complain now that the notice was insufficient, or have they waived that complaint?

Can they complain after the hearing that the judge didn’t ask the Government to prosecute the contempt, or do they waive that complaint by not raising it before the hearing? (In the leading Supreme Court case, Young v. U.S. ex rel. Vuitton et Fils S.A., the defendant/contemnors objected before trial to the appointment of the plaintiff’s lawyers to prosecute the contempt; the Supreme Court agreed with them and reversed.)

Can they complain after a hearing that the alleged complaint involved disrespect toward Judge Hoyt, and that he was therefore disqualified from presiding, or did they consent to him hearing the case by not objecting?

If they can raise any of these issues after the hearing, this contempt trial may legally be a freebie for Chuck. But there’s no caselaw directly on point, and leaving this in the hands of Judge Hoyt and Lloyd Kelley on the chance that they can either a) win or b) get another bite at the apple if they lose seems like an exceptionally risky move, if they know what they are doing, or a startlingly ignorant one if they don’t.

[Edit: On a few moments’ more reflection, I’m voting for “startlingly ignorant”. The time to object to this entire proceeding was before subjecting Chuck to cross-examination under oath. None of the procedural errors would bar reprosecution, and Chuck’s testimony at this hearing could be used at a later hearing. Because Chuck testified, and testified badly, this hearing was not a freebie.]

, ,

0 responses to “A Lesson in Federal Contempt”

  1. In indirect contempt the judge of the court can rule since obviously they didn’t see or know directly about the act of contempt.

    The U.S. Supreme Court has said that so long as you don’t ask for more than 6 months in jail (Texas has adopted this rule), it is a minor offense and the right to a jury does not apply.

    In Texas, it is not the show cause order than must give sufficient notice but it is the motion itself. I don’t know if this is the same in Federal court. Any defects would be grounds for a post conviction habeas.

  2. Ron,

    Thanks for the comment.

    Whether the judge witnessed the contempt doesn’t appear to be part of the Rule 42 analysis.

    The U.S. Supreme Court’s rule is the constitutional rule. The statute, ¬ß3691, broadens the right to a jury trial, but the contemnor must invoke the right.

    Rule 42 is clear: the show cause order must give notice.

    If the contemnor receives constitutional due process (which Chuck is receiving) but Rule 42 is violated in the process (and he doesn’t object), I doubt that that would justify habeas relief. I’d have to give that some more thought.

    At best it seems like a gamble, unless there’s a silver-bullet case from the Fifth Circuit already.

  3. Mark

    You’re applying a criminal law analysis to a civil matter. This is not a Rule 42 case. Judge Hoyt has the inherent authority to hold someone in contempt as well as authority under Rule 37(b) of the Federal Rules of Civil Procedure.

    I agree that Rule 42 probably provides a good sketch of what due process requires but I don’t think it is determinative.

    It all gets very confusing because of the use of the words “criminal” and “civil.” Rosenthal has a contempt action seeking criminal penalties which arises out of a civil action.

    I think the bottom line is that despite what Tom says Hoyt could throw Rosenthal in the slammer if he wants. Whether Rosenthal could get out is a whole other question.

  4. Ron,

    Rule 42 doesn’t speak to “contempt in criminal cases” but to “criminal contempt”; I assume that the Supreme Court knows the difference. (So does the 7th Circuit — there’s a 7th Circuit case, In re Troutt, applying Rule 42 to an indirect criminal contempt arising out of a civil case.)

    Rule 37(b) deals with discovery order violations; this has gone a little farther than that. Absent any authority to the contrary, I think it’s safe to say that Rule 42 governs.

  5. Mark

    I have no doubt it applies, but the question is just how much it applies.

    For instance, there are many criminal contempt cases that are handled just like Hoyt is handling this one. Private litigant brings motion and Hoyt rules on it. The US Attorney manual even talks about this.

    http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00768.htm

    So would the failure to “appoint” a prosecutor give Rosenthal an out? Beats the heck out of me. The rule seems mandatory, but I suspect there is some wiggle room for “judicial discretion.”

    My bet is that Hoyt won’t jail Rosenthal. Could be very interesting if he does.

Leave a Reply

Your email address will not be published.