In Re Robert T. Gustafson, Esquire

This appeal presents the issue of when a court may issue a summary contempt order against a lawyer for conduct and remarks in his closing argument to the jury. We hold that while the defendant-lawyer’s remarks in this case may have been contemptuous under 18 U.S.C. § 401 , 1 summary disposition under Fed.R.Crim.P. 42(a) was improper and the court should instead have proceeded under Rule 42(b).

Robert Gustafson represented a defendant in a complex conspiracy case. He read his closing argument to the jury from a prepared text. He read it so fast that several times the court was forced to request that he slow down so that the court reporter could transcribe the proceedings. The court was unsuccessful, and eventually it directed the reporter to stop stenotyping and rely, instead, on a tape recorder for transcription.

On a number of occasions during Gustaf-son’s argument the government raised and the court sustained objections to improper statements.

At the close of Gustafson’s argument, the following exchange occurred:

Following Gustafson’s final remark, the court excused the jury and recessed the trial for the day. After the jury left the courtroom, the court summarily held…

dissenting:

With due respect for the views of my colleagues, I must dissent. This is a classic case of willful disobedience by an experienced trial lawyer, followed by insulting and vicious accusations of judicial misconduct and collusion with a prosecutor.

My review of the facts leads me to conclude that the district court properly invoked the summary criminal contempt provisions of Rule 42(a) of the Federal Rules of Criminal Procedure.

Attorney Gustafson read his closing argument to the jury from a prepared text, and was reading so rapidly that the court was forced to ask counsel to slow down so that the reporter could record the argument. Refusing to heed the admonition, Gustafson continued in a manner that forced the court to interrupt him 19 times to request that he slow the speed of his delivery. These requests were ignored, and the court eventually ordered the reporter to utilize a tape recorder for the balance of the argument.

Repeatedly during Gustafson’s closing argument, the government objected to his improper statements. The court sustained the objections, and admonished Gustafson to confine his argument to the facts. The argument concluded with the colloquy quoted…

619 F.2d 1354 58 A.L.R.Fed. 1 In re Robert T. GUSTAFSON, Esquire. No. 78-3732. United States Court of Appeals, Ninth Circuit. May 30, 1980. Robert T. Gustafson, Chula Vista, Cal., for appellant. Judith S. Feigin, Asst. U. S. Atty. (on the brief), Michael H. Walsh, U. S. Atty., Judith S. Feigin, Asst. U. S. Atty. (argued), San Diego, Cal., for appellee. Appeal from the United States District Court for the Southern District of California. Before ELY, WRIGHT and FERGUSON, Circuit Judges. FERGUSON, Circuit Judge: 1 This appeal presents the issue of when a court may issue a summary contempt order against a lawyer for conduct and remarks in his closing argument to the jury. We hold that while the defendant-lawyer's remarks in this case may have been contemptuous under 18 U.S.C. § 401 , 1 summary disposition under Fed.R.Crim.P. 42(a) was improper and the court should instead have proceeded under Rule 42(b). 2 Robert Gustafson represented a defendant in a complex conspiracy case. He read his closing argument to the jury from a prepared text. He read it so fast that several times the court was forced to request that he slow down so that the court reporter could transcribe the…