BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 7 - Miscellaneous Proceedings

    7.01 Contempt-Criminal (FRCP 42; 18 USC 401)

        7.01.1 Contempt--Criminal: Background
        7.01.2 Contempt--Criminal: Controlling Statute And Rule
        7.01.3 Contempt--Criminal: Criminal Contempt Procedures
        7.01.4 Contempt--Criminal: Procedure When Contemptuous Conduct Is Personally Observed By The Judge And Immediate Action Is Required
        7.01.5 Contempt-Criminal: Procedure When Contemptuous Conduct Is Not Personally Observed By The Judge Or When The Conduct Is Observed By The Judge But Requires No Immediate Action
        7.01.6 Contempt--Criminal: Other Sources

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

The purpose, procedure, and penalty for criminal contempt differ from those for civil contempt. It is essential that the trial judge make clear on the record whether the proceeding is for civil or criminal contempt.

The purpose of criminal contempt is to punish a person for a past act of contempt. Criminal contempt has the characteristics of a crime, and the contemnor is cloaked with the safeguards of one accused of a crime. The purpose of civil contempt is to compel someone to do or not do a certain act.

Case law makes clear that the contempt power is one to be exercised with the greatest restraint and that, in exercising that power, a court should exert only the power needed to achieve the desired end.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

The controlling statute for criminal contempt is 18 USC 401. It provides as follows:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

(2) Misbehavior of any of its officers in their official transactions;

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

The applicable rule of procedure is FRCP 42. That rule, as amended December 1, 2002, provides as follows:

(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 attempt.

(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 USC 636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

FRCP 42 prescribes two different procedures, depending on whether the judge personally observes the contemptuous conduct and whether immediate action is required.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

When you see or hear contemptuous conduct, you may but are not compelled to proceed under FRCP 42(b).

This summary procedure is appropriate only when immediate action is needed. It is reserved for conduct that actually disrupts or obstructs court proceedings and for situations in which immediate action is necessary to restore the court’s authority. The conduct must be more flagrant than mere disrespect to the judge or an affront to the judge’s sense of dignity. [Footnote 1]

If the conduct (such as shouting in the courtroom) does interfere with court proceedings, proceed as follows:

1. First, warn the person that if a repetition occurs, he or she may be removed from the courtroom or may be found in criminal contempt.

2. If marshals are not already in the courtroom, summon them, so that they will be present if the disruptive conduct is repeated.

3. If the offender repeats the disruptive conduct, order him or her removed from the courtroom.

4. If the conduct is so disruptive that removing the offender is inadequate to reestablish the authority and dignity of the court, follow the FRCP 42(b) procedure. [Note: In summary proceedings under Rule 42(b), the court may impose a sentence that does not exceed the punishment authorized for a petty offense, i.e., imprisonment of no more than six months or a fine of no more than $5,000 if the contemnor is an individual, $10,000 if the contemnor is an organization. If more severe punishment seems appropriate, the court must proceed by notice under Rule 42(a) and accord the contemnor the right to a jury trial. (Contempt fines exceeding the petty offense limit on organizations have been imposed without the right to a jury trial. See Muniz v. Hoffman, 422 U.S. 454 (1975); United States v. Twentieth Century Fox Film Corp., 882 F.2d 656 (2d Cir. 1989), cert. denied, 110 S. Ct. 722 (1990); United States v. Troxler Hosiery Co., 681 F.2d 934 (4th Cir. 1982). These cases, however, did not involve summary proceedings under Rule 42(a) (now 42(b)).]

5. Before proceeding, be sure that an adequate number of marshals are in the courtroom.

6. Retire the jury. Have the offender brought before you. (The offender is not entitled to counsel in a summary proceeding.)

7. Advise the offender that you intend to find him or her in criminal contempt for obstructing the administration of justice by reason of [here describe the conduct].

8. Ask the offender if he or she would care to say anything in mitigation.

9. After hearing the offender out, impose sentence in words to this effect:

I find you in criminal contempt for so conducting yourself in this courtroom that you obstructed the administration of justice. The conduct for which I find you in criminal contempt was [here describe the conduct observed by you]. I sentence you to ____ hour(s) [day(s)] in jail [or I fine you $____] for that conduct. [In criminal contempt you cannot both imprison and fine.] The serving of this sentence shall commence at once [or shall commence at the conclusion of this trial].

(a) No sentencing guideline has been prescribed for contempt because of the variety of behaviors covered. See U.S.S.G. § 2J1.1, Application Note. In the absence of a guideline, the court is to "impose an appropriate sentence, having due regard for the purposes set forth in [18 USC 3553(a)(2),] . . . for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission." 18 USC 3553(b).

(b) It is possible for the court to find a person in summary criminal contempt but to defer commencement of the sentence until the trial ends. In this case, however, using the FRCP 42(a) procedure rather than the summary procedure of 42(b) is probably best.

10. You must prepare, sign, and file an order of contempt. This order is intended to permit informed appellate review. The order must contain all that you saw or heard that obstructed the proceedings and by reason of which you found the defendant in contempt. Remember, for your action to be sustained on appeal, the conduct described in your order must constitute an obstruction to the administration of justice. Be sure, therefore, that the order fully and accurately recites all of the obstructive conduct that you saw or heard. The order of contempt must contain your certification that the described conduct was seen or heard by you and was committed in your presence. The form of the order of contempt may be as follows:

In conformity with Rule 42(b), Federal Rules of Criminal Procedure, I hereby certify that the following was committed in my presence and was seen or heard by me: [Here insert a detailed recital of the acts constituting the contemptuous conduct.]

Because of the foregoing conduct, which obstructed and disrupted the court in its administration of justice, I sentenced [name of contemnor] to hours/days in jail, the said jail sentence to commence [at once/at the conclusion of the trial] [or I fined [name of contemnor] $ ].

11. You must date and sign the order of contempt and file it without delay.

FOOTNOTES:

Footnote 1:    Summary procedure may also be appropriate when an already imprisoned witness refuses to testify during a criminal trial despite a grant of immunity. See United States v. Wilson, 421 U.S. 309 (1975). See also supra section 5.04: Handling the recalcitrant witness.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

7.01.5 Contempt--Criminal: Procedure When Contemptuous Conduct Is Not Personally Observed By The Judge Or When The Conduct Is Observed By The Judge But Requires No Immediate Action

If you become aware of conduct that is within the contemplation of 18 USC 401 but did not occur in your presence, or if you observed contemptuous conduct but it did not actually disrupt court proceedings, you must proceed under FRCP 42(a), which requires that the contempt be prosecuted by notice rather than summarily.

Under FRCP 42(a):

1. The notice may be given

(a) orally by you in open court in the defendant’s presence; or

(b) by an order to show cause; or

(c) by an order of arrest.

2. If giving oral notice to the defendant in open court is not possible, you should ask the U.S. attorney to prepare for your signature an order to show cause directed to the defendant and ordering the defendant to show cause why he or she should not be found in criminal contempt because of the offending conduct.

3. The notice, whether oral or written, must set down a definite time and place for the hearing and must describe the conduct constituting the charged contempt and describe it as being criminal contempt. You must accord the defendant a reasonable period in which to engage an attorney and prepare a defense.

Remember that under the rule, another judge must conduct the trial if the contemptuous conduct involved criticism of or disrespect for you, unless the defendant expressly waives the right to trial by another judge.

4. Because a person found guilty of criminal contempt may be imprisoned, the defendant has a right to counsel. If the defendant cannot afford counsel, you must appoint an attorney for him or her.

5. The defendant has a right to a jury trial unless, before trial, you, on your own motion or on the government’s motion, limit the maximum sentence that you will impose to the maximum authorized for a petty offense, that is, imprisonment for six months or a fine of $5,000 (for an individual; the fine limit on organizations for petty offenses is $10,000 (but see Muniz v. Hoffman, 422 U.S. 454 (1975); United States v. Twentieth Century Fox Film Corp., 882 F.2d 656 (2d Cir. 1989), cert. denied, 110 S. Ct. 722 (1990); United States v. Troxler Hosiery Co., 681 F.2d 934 (4th Cir. 1982), allowing contempt fines on organizations in excess of those authorized for petty offenses, without the right to a jury trial).

6. At trial, whether a bench or jury trial, remember that defendant is being tried for a crime and is entitled to all the protections to which anyone accused of a crime is entitled. The defendant has a right to testify and to call witnesses on his or her own behalf but cannot be compelled to testify. The defendant is to be found guilty only if his or her guilt is proven beyond a reasonable doubt.

7. If found guilty, the defendant should be sentenced in the same manner as any defendant convicted of a crime. You may wish to order a presentence report and to set down the sentencing for a later date.

8. If the defendant has been afforded the right to a jury trial, there is no statutory maximum to the fine or imprisonment that may be imposed. However, you may not impose both imprisonment and a fine. Because of the variety of behaviors covered, no sentencing guideline has been prescribed for contempt. See U.S.S.G. § 2J1.1, Application Note. In the absence of a guideline, the court is to "impose an appropriate sentence, having due regard for the purposes set forth in [18 USC 3553(a)(2),] . . . for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission." 18 USC 3553(b)(2).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

7.01.6 Contempt--Criminal: Other Sources

NCJIC Materials Related To This Issue:

Chapter 84: Contempt, Obstruction Of Justice, Failure To Appear

Other FJC sources

Donald S. Voorhees, Manual on Recurring Problems in Criminal Trials 51–67 (5th ed. 2001)