D.C. Civil Action No. 72-361 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Hastie, Van Dusen and Adams, Circuit Judges.
Allen Brunwasser, a practicing lawyer, has taken this appeal from a summary adjudication under which he stands convicted of contempt of court.
On October 19, 1972 District Judge Hubert I. Teitelbaum instructed Brunwasser, counsel for plaintiffs in a civil action then pending before Judge Teitelbaum in the District Court for the Western District of Pennsylvania, to appear for oral argument at 9:30 A.M. on Friday, January 19, 1973. On Wednesday, January 17, Brunwasser began a trial in state court. He continued to conduct that trial on January 18 and 19, thus failing to appear as directed before Judge Teitelbaum on the morning of January 19.
Shortly after Brunwasser failed to appear, Judge Teitelbaum entered an order instructing Brunwasser to appear at 4:00 P.M. on the same day and to show cause why he should not be held in contempt for his absence that morning. That order also instructed the United States Marshal to take custody of Brunwasser and bring him before Judge Teitelbaum at 4:00 P.M. Although the record is unclear, it seems that Brunwasser was first notified of the show cause order when the marshal arrested him sometime in the afternoon.
At the 4 o'clock hearing Brunwasser requested a postponement in order to consult with counsel and prepare a defense. He also asked Judge Teitelbaum to recuse himself. Judge Teitelbaum denied both requests, but gave Brunwasser an opportunity to explain why he had not appeared that morning.
In responding, Brunwasser stated that he had gone to the state court that morning, believing that he was obligated to do so, that he had "brought the matter [of conflicting commitments] to Judge Clarke's [the state judge's] attention" and that Judge Clarke then instructed him: "'You stay here. We are going on with this case.'" Judge Teitelbaum found this explanation insufficient, adjudged Brunwasser in contempt and sentenced him to 48 hours in county jail, effective immediately. The judge also denied Brunwasser's request for release on bond pending a supersedeas or an appeal.*fn1 The present appeal was perfected after Brunwasser had served his full 48 hour sentence.
Certain additional statements of fact appear in a memorandum opinion filed by the district judge after sentence had been imposed and served. That opinion states that during the afternoon immediately preceding Brunwasser's scheduled conflicting appearances in state and federal courts, Judge Teitelbaum's office had informed Brunwasser that Judge Teitelbaum had obtained the consent of the President Judge of the state court (not the judge before whom Brunwasser was trying a case) that Brunwasser appear the following morning in federal rather than state court. The opinion also recites that, after the 4:00 P.M. hearing at which Brunwasser was orally adjudged in contempt, but before that adjudication was reduced to writing and before Brunwasser was taken to jail, Judge Teitelbaum had telephoned Judge Clarke. At that time Judge Clarke stated that he had informed Mr. Brunwasser (presumably when Brunwasser appeared for the state proceeding) that he had agreed to postpone the state court hearing, but Brunwasser then told him that the Federal matter "had been taken care of".
It is agreed that the procedure which Judge Teitelbaum followed is that of summary contempt, as authorized and limited by Rule 42(a), F.R.Cr.P. That rule provides:
"Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record."
Rule 42(b) states that all criminal contempts not decided under Rule 42(a) are subject to various due process safeguards, including, inter alia, notice, reasonable time for preparation of a defense, and admission to bail. Although the rule does not expressly provide for it, in our view a defendant is entitled to representation by counsel in a Rule 42(b) proceeding. Cooke v. United States, 1925, 267 U.S. 517, 537, 69 L. Ed. 767, 45 S. Ct. 390; Argersinger v. Hamlin, 1972, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006.
At the outset, the government argues that this appeal is moot because Brunwasser has fully served his sentence. Two considerations ...