United States v. Manuel Glenn Abascal

509 F.2d 752 UNITED STATES of America, Plaintiff-Appellee, v. Manuel Glenn ABASCAL, Defendant-Appellant. No. 74--2227. United States Court of Appeals, Ninth Circuit. Jan. 9, 1975. Howard Moore, Jr. (argued), Berkeley, Cal., for defendant-appellant. John J. Robinson, Jr., Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee. Before KOELSCH and WALLACE, Circuit Judges and JAMESON, * District Judge. OPINION JAMESON, District Judge: Manuel Glenn Abascal appeals from a conviction for criminal contempt in violation of 18 U.S.C. § 401 . The district court, pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure, summarily found appellant guilty of contempt and imposed a ninety day sentence. Background The appellant was one of nine persons charged in a six count indictment with various offenses involving the illegal importation and possession of narcotics with the intent to distribute. At the time of the alleged contempt, appellant, who was free on bond, was attending a hearing before the district court on a motion made by one of his co-defendants. Appellant had come to the courthouse with his counsel to examine records in the clerk's office in connection with…

Manuel Glenn Abascal appeals from a conviction for criminal contempt in violation of 18 U.S.C. § 401 . The district court, pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure, summarily found appellant guilty of contempt and imposed a ninety day sentence.

Background

The appellant was one of nine persons charged in a six count indictment with various offenses involving the illegal importation and possession of narcotics with the intent to distribute. At the time of the alleged contempt, appellant, who was free on bond, was attending a hearing before the district court on a motion made by one of his co-defendants. Appellant had come to the courthouse with his counsel to examine records in the clerk’s office in connection with a separate motion on behalf of appellant. While his attorney was in the clerk’s office, appellant entered the courtroom. Although he had apparently been asked to attend the hearing by counsel for the co-defendant, appellant was not directly involved in the proceedings nor was his presence in court required.

Court was recessed for fifteen minutes during the morning session. The clerk ordered those present to rise. Appellant remained…

(concurring):

I concur with the majority except for the last section of the opinion entitled “Punishment” and the vacation of the remainder of the sentence imposed. The district court should be left free to hold a hearing pursuant to Rule 42(b). If it does so, a new penalty may be imposed. Such a hearing may produce evidence which would be relevant to whether the imposition of a new contempt sentence requires modification. I cannot make that judgment before the Rule 42(b) hearing. Therefore, I would reverse merely on the basis that the district court proceeded upon Rule 42(a) instead of Rule 42(b).