United States Court of Appeals For the Seventh Circuit
Criminal Procedure — contempt
Where an attorney’s allegedly contemptuous conduct did not occur in the presence of the court, a summary contempt finding under FRCP 42(b) must be vacated.
“None of Brindley’s conduct satisfies these requirements for summary adjudication. The failure to appear at the November 26 status conference did not occur in the court’s actual presence. See, e.g., In re Gates, 600 F.3d 333, 339 (4th Cir. 2010) (‘[M]ere tardiness or absence at a scheduled court appearance is not a direct contempt subject to summary disposition under Rule 42(b).’); see also United States v. Peoples, 698 F.3d 185, 192 (4th Cir. 2012) (citing cases). The statements purported to be false in the motion to continue did not occur in the court’s presence either. See United States v. Oberhellmann, 946 F.2d 50, 52 (7th Cir. 1991) (‘[A] mere filing in the clerk’s office could not rise to the level of a contempt committed in the “actual presence of the court… .”’). And the testimony at the show cause hearing can be found contemptuous only once the judge relies on extrinsic evidence and engages in fact-finding; thus summary disposition was improper. See Trudeau, 606 F.3d at 387–88. The same is true for the suspect statements in the motion to continue. Furthermore, with respect to all three instances of conduct, there was no need for immediate punishment: Brindley’s actions did not obstruct any proceedings or other court function. See Trudeau, 606 F.3d at 389 (‘[B]ecause the conduct occurred outside the judge’s presence and, rather than being forced to stop proceedings by [the] behavior, the judge had to actually convene proceedings … , summary contempt should never have been an option here.’).”
Vacated and Remanded.
Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Tinder, J.