In Re Robert T. Gustafson, Esquire

650 F.2d 1017 In re Robert T. GUSTAFSON, Esquire No. 78-3732. United States Court of Appeals, Ninth Circuit. Submitted Jan. 15, 1981. Decided June 25, 1981. Robert T. Gustafson, Chula Vista, Cal., for appellant. Judith S. Feigin, Asst. U.S. Atty., San Diego, Cal. (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 BROWNING, WRIGHT, GOODWIN, WALLACE, SNEED, HUG, SCHROEDER, FLETCHER, FARRIS, BOOCHEVER and NORRIS, Circuit Judges. FARRIS, Circuit Judge: 1 Robert T. Gustafson appeals a summary contempt order entered against him by the district court. A divided panel of this court reversed. See 619 F.2d 1354 (9th Cir. 1980). Because proper resolution of the principal issue presented the conditions under which a federal court may summarily impose criminal contempt is important to just and orderly administration of the courts in the fifteen districts embraced by this circuit, we granted rehearing by this limited en banc panel, see 9th Cir.R. 25. We now affirm. I. GUSTAFSON'S CONDUCT 2 Gustafson represented one of six criminal…

with whom HUG, SCHROEDER, FLETCHER and NORRIS, Circuit Judges join, dissenting:

I respectfully dissent because: I differ with the majority’s (1) elimination of an exigency prerequisite for dispensing with the basic due process requirements of notice and opportunity to be heard before an adjudication of contempt; (2) characterization of the trial court’s decision to dispense with those due process requirements as discretionary; and (3) standard of reviewing such a decision based on abuse of discretion. Additionally, I believe that the certificate judging Gustafson in contempt fails to set forth any reason mandating summary adjudication, and that there were no exceptional circumstances in this case to justify dispensing with notice and opportunity to be heard.

I. FACTS

Gustafson, a retired Naval Judge Advocate, was appointed to represent one of several defendants in a complex conspiracy case. He presented his closing argument from a prepared text, which he read so fast that the court reporter and the district judge repeatedly requested him to slow down. Gustafson also referred to his client’s wife and children several times, despite prosecution objections, and warnings from the…

Robert T. Gustafson appeals a summary contempt order entered against him by the district court. A divided panel of this court reversed. See 619 F.2d 1354 (9th Cir. 1980). Because proper resolution of the principal issue presented — the conditions under which a federal court may summarily impose criminal contempt — is important to just and orderly administration of the courts in the fifteen districts embraced by this circuit, we granted rehearing by this limited en banc panel, see 9th Cir.R. 25. We now affirm.

I. GUSTAFSON’S CONDUCT

Gustafson represented one of six criminal defendants charged with conspiring to smuggle aliens. On December 6,1978, after more than twelve days of jury trial, closing arguments began. Gustafson, representing the first defendant to argue, read his presentation from a prepared text. He read it so fast that the trial judge or the court reporter requested that he repeat words or slow down at least nineteen times. On some of these occasions, he continued at so rapid a pace that he was almost immediately cautioned again. After it became apparent .that Gustafson could not be slowed down, the trial judge stopped the court reporter and relied solely on a tape…