United States of America v. Michael A. Scott

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4042
MICHAEL A. SCOTT,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-99-89, CA-99-180-2)
Submitted: April 25, 2000
Decided: June 19, 2000
Before WIDENER, WILLIAMS, and KING,
Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Michael A. Scott, Appellant Pro Se. Robert Joseph Seidel, Jr., Assis-
tant United States Attorney, Norfolk, Virginia; Karin Fleming Rich-
ards, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Michael A. Scott appeals his conviction and sentence for contempt
of court in violation of 18 U.S.C. § 401(3) (1994). We find that the
district court erred by not appointing an independent prosecutor.
Accordingly, we vacate Scott's conviction and remand for further
proceeding.
Because criminal contempt is a crime, the defendant is normally
provided with fundamental procedural safeguards. See Young v.
United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798-99
(1987). "The procedures attendant to the prosecution of a criminal
contempt charge depend largely upon whether the conduct constitutes
direct or indirect contempt." United States v. Neal, 101 F.3d 993, 997
(4th Cir. 1996). Direct contempt is conduct that occurs "in open court,
in the presence of the judge, which disturbs the court's business,
where all of the essential elements of the misconduct are under the
eye of the court, are actually observed by the court, and where imme-
diate punishment is essential to prevent demoralization of the court's
authority before the public." In re Oliver , 333 U.S. 257, 275 (1948)
(internal quotation marks omitted). Direct contempt may be punished
summarily, without some of the procedural safeguards that attend a
criminal prosecution. See Fed. R. Crim. P. 42(a). "In a summary pro-
ceeding for direct criminal contempt, the otherwise inconsistent func-
tions of prosecutor, jury and judge mesh into a single individual."
Neal, 101 F.3d at 997 (internal quotation marks omitted).
Indirect contempt is conduct that does not occur within the pres-
ence of the court and must be proved through the testimony of third
parties. See id. We stated in Neal that:
The inherent power of the court to punish indirect contempt
is limited because conduct occurring out of the presence of
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the court does not threaten[ ] a court's immediate ability to
conduct its proceedings. Thus, indirect contempt may never
be punished summarily, but rather requires adherence to
more normal adversary procedures.
Id. (internal quotation marks and citations omitted; alteration in origi-
nal). We further stated that "[a]mong those procedures that are funda-
mental to our adversary system is the use of an independent
prosecutor to pursue charges against a criminal defendant. It is axiom-
atic that the prosecution of crimes is not a proper exercise of the judi-
cial function." Id. We further stated that:
[t]he melding of the judicial and prosecutorial functions is
a fundamental error that undercuts the dispersion of power
among the branches and, as a result, casts doubt on the
integrity of the judicial process. To allow a district court to
investigate the matter, call the witnesses for the prosecution,
conduct the direct examination of them, and sit in judgment
of the defendant undoubtedly undermines the fairness, integ-
rity, and public reputation of judicial proceedings.
Id. at 999-1000.
The charge of criminal contempt in Scott's case was a charge of
indirect contempt because the conduct giving rise to the charge
occurred outside the presence of the district court. We therefore find
that the court should have assigned an independent prosecutor to pros-
ecute the charges. However, we find that the district court did not err
in denying Scott's motion to recuse.
Accordingly, we vacate the district court's judgment and remand
for further proceedings. The district court should appoint an indepen-
dent prosecutor if it decides to pursue criminal contempt charges
against Scott. We also deny Scott's motion for a stay of further execu-
tion of sentence; he may take this matter up before the district court
on remand. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid in the decisional process.
VACATED AND REMANDED
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