Milan

MEMORANDUM **

John Anthony Malan (“Milan”) 1 was convicted of criminal contempt under 18 U.S.C. § 401 (1) for statements he made to several prospective jurors in a trial involving a nationally-known tax protester. Milan appeals, arguing that there was insufficient evidence to prove the elements of criminal contempt. 2 We agree and reverse Milan’s conviction.

Under § 401(1) the district court must find that a defendant’s contumacious behavior occurred in or near the presence of the court, it actually disrupted or materially obstructed the administration of justice, and it was willful. 3 United States v. Galin, 222 F.3d 1123, 1127 (9th Cir.2000).

First, the district court did not clearly err in finding that Milan willfully and knowingly made statements to prospective jurors. Jurors testified they saw Milan approach them and tell the group something to the effect of: ‘You’re the jury, you guys can make the law, you guys get to decide the law. Don’t let anyone decide for you.” The comments were obviously directed at the jury pool. United States v. Smith, 555 F.2d 249, 251 (9th Cir.1977).

However, the district court clearly erred in concluding that Milan’s actions obstructed the…