United States of America v. Ricardo Arredondo

1
7RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0403P (6th Cir.)
File Name: 03a0403p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICARDO ARREDONDO,
Defendant-Appellant.
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No. 02-1394
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 89-20081—Robert H. Cleland, District Judge.
Argued: September 16, 2003
Decided and Filed: November 13, 2003
Before: BOGGS, Chief Judge; and KRUPANSKY and
CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Kevin M. Schad, SCHAD & COOK, Indian
Springs, Ohio, for Appellant. James A. Brunson,
ASSISTANT UNITED STATES ATTORNEY, Bay City,
Michigan, for Appellee. ON BRIEF: Kevin M. Schad,
SCHAD & COOK, Indian Springs, Ohio, for Appellant.
2 United States v. Arredondo No. 02-1394
James A. Brunson, ASSISTANT UNITED STATES
ATTORNEY, Bay City, Michigan, for Appellee.
_________________
OPINION
_________________
BOGGS, Chief Judge. The district court held Ricardo
Arredondo in criminal contempt of court after finding that he
gave fabricated evidence of ineffective assistance of counsel
to support his petition for postconviction relief from a federal
sentence for drug trafficking. Mr. Arredondo appeals from
this contempt conviction and from the district court’s
accompanying denial of relief from his drug sentence. For the
reasons explained below, we reverse the conviction for
contempt but affirm the denial of postconviction relief.
I
Arredondo was convicted in 1990 of three counts of
distribution of heroin and conspiracy to distribute heroin, and
sentenced to 20 years in prison. In 1996, with the assistance
of another inmate, he filed a pro se petition under 28 U.S.C.
§ 2255 seeking relief from the sentence. As relevant here, the
petition asserted that his appointed attorney, Thomas Plachta,
provided constitutionally ineffective representation at
sentencing by failing to communicate two alleged
government plea offers to Arredondo for approval.
Arredondo claims he would have accepted either of the offers
if given the chance, and would thereby have obtained a lighter
sentence than the one imposed on him. However, he stated,
Plachta “never advised [him] of any Plea Offer.”
Arredondo’s trial judge had fixed a pretrial deadline of
August 27, 1990, after which no plea offers could be
extended. It is undisputed that Assistant United States
Attorney Michael Hluchaniuk made one plea offer to Plachta
before this deadline, which would have involved a

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No. 02-1394 United States v. Arredondo 3
recommended sentence of five to ten years, and that Plachta
rejected this offer. The disputed issue regarding this offer is
whether Plachta first communicated it to Arredondo for
approval.
Arredendo’s petition further alleged that Hluchaniuk made
a second offer of a ten-year sentence to Plachta on the day of
trial, and that Plachta also rejected this offer without
conveying it to his client. Arredondo supported this
allegation with two affidavits. One affiant, Maria Teneyuque,
stated that her sister Mary Jane Dietrich (a material witness in
Arredondo’s trial) had overheard Plachta and Hluchaniuk
discussing a plea before the trial. Arredondo also filed his
own affidavit testifying that he had seen his lawyer talking
with Hluchaniuk on the day of trial, and had seen Plachta
shake his head “no.”
Both Plachta and Hluchianiuk denied that any second offer
was made. Plachta did not squarely deny Arredondo’s claim
that Plachta had failed to communicate the first offer.
Instead, Plachta filed an affidavit stating that he could not
specifically remember the events of that day, but that “my
practice has always been to communicate any plea offer made
by the prosecution to my client regardless of my personal
view as to the merits of the offer.”
The district court denied Arredondo’s Section 2255 petition
without an evidentiary hearing. Arredondo then retained a
different inmate paralegal to assist him and filed a pro se
motion for reconsideration of the denial, pursuant to Fed. R.
Civ. P. 59(e). This motion was accompanied by a new
affidavit from Arredondo that included new allegations: that
Arredondo had himself heard some snippets of the alleged
plea conversation between Plachta and Hluchaniuk on the day
of trial, including a reference to a ten-year sentence. In this
affidavit, Arredondo stated that he had seen the prosecutor
shake his head “no.” The new affidavit also alleged that
Plachta “advised” Arredondo “in words” on the day of trial
that he had rejected a government plea offer, in tension with
4 United States v. Arredondo No. 02-1394
1W e held that the original supporting affidavit accompanying the
petition (in which M s. Teneyuq ue repo rted hearing the lawyers d iscuss a
second plea o ffer on the day of trial) was inadmissible as hearsay and
implausible on its face, since the district judge in question had a firm
policy of refusing to accept any negotiated pleas after the pretrial cut-off
date. W e also rejected Arredon do’s second affidavit as a p ossible basis
for a hearing, because the conversa tion sup posedly overheard by
Arredondo was not newly discovered evidence, and Arredondo had
presented no valid reason for failing to include it with his original petition
for relief.
2W e also held that Arredondo should receive a hearing on his other
ineffective assistance claim regarding counsel’s failure to challenge the
drug quantity in the pre-sentence report (P SR). Arredondo, 178 F.3d at
789.
the statement in the earlier affidavit that Plachta had “never
advised” him of any offer. However, in the same paragraph
of the second affidavit, Arredondo affirmed that Plachta never
“made [Arredondo] aware” of a plea offer prior to trial. It is
thus fairly clear that by “made aware” Arredondo meant
communicating the offer before rejecting it. The district court
denied the motion for reconsideration and Arredondo
appealed to this court.
We reversed in part and remanded for an evidentiary
hearing on the petition. Arredondo v. United States, 178 F.3d
778 (6th Cir. 1999). We agreed with the district court that
Arredondo was not entitled to a hearing on his allegations
concerning the supposed second plea offer.1 Id. at 782-83 &
n.3. However, we held that he was entitled to a hearing on
the circumstances surrounding the first plea offer. Id. at 789.2
In closing, we noted that the inconsistent accounts in the
affidavits of Plachta, Hluchaniuk, and Arredondo suggested
that someone was not telling the truth:
Arredondo has lodged serious claims that attack his
attorney’s professional competence. If true, his petition
deserves our attention. ... If false, Arredondo has

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No. 02-1394 United States v. Arredondo 5
3The court also rejected a separate claim of ineffective assistance
premised on co unsel’s failure to challenge the PS R. Arredondo has
abandoned this issue on app eal.
4At the time of the district court proceedings, the notice-and-hearing
procedure used in Arredondo’s contempt proceeding was found at Fed. R.
Crim. P. 42(b). However, the rule underwent a technical revision on
December 1, 20 02. T he procedure is now found at Fed. R. Crim. P. 42(a).
lied in a self-interested endeavor that could have caused
unwarranted discipline of his attorney. The courts should
not encourage such actions by refusing to punish
demonstrably false claims of ineffective assistance of
counsel.
Id. at 790.
The district court held an evidentiary hearing on
Arredondo’s petition on January 13, 2000. Arredondo
repeated in court the allegations of his second affidavit:
Plachta had failed to secure his client’s permission to reject
two plea offers, and Arredondo had personally heard
fragments of the discussion concerning the second offer being
discussed. Assistant United States Attorney Hluchaniuk
again testified that he made one plea offer to Plachta prior to
the court deadline, but no second offer. Plachta testified that
he did not specifically recall the plea discussions in
Arredondo’s case, but that it was always his practice to pass
on such offers to his clients for approval.
The district court denied Arredondo’s Section 2255
petition. It rejected his testimony about the existence of the
second plea offer and about Plachta’s handling of the first
offer.3 The court went further, ordering a hearing on whether
Arredondo had committed criminal contempt of court by
knowingly offering false evidence to support his petition.
After briefing and a hearing on the contempt issue, pursuant
to Fed. R. Crim. P. 42(a),4 the court found Arredondo guilty
6 United States v. Arredondo No. 02-1394
of criminal contempt and imposed a sentence of six months
in prison, consecutive to his prior sentence, and a $3,000 fine.
The court found that Arredondo had engaged in a series of
fabrications. It noted that Arredondo’s story had changed
materially from his first affidavit to his second one: after the
district court rejected the Teneyuque affidavit as hearsay,
Arredondo introduced an assertion that he had heard part of
the day-of-trial plea discussion, without explaining why this
seemingly important fact was not included in his first
affidavit. The court concluded that Arredondo’s second
affidavit had “learned” from the testimony that had come to
light, suggesting a deliberate fabrication. The court deemed
the affidavit particularly incredible in light of Hluchaniuk’s
denial of making any second plea offer. It also discounted
Arredondo’s claim that Plachta failed to pass on the first plea
offer. Drawing on its own knowledge of Plachta’s
“fastidious” work habits, the court found that he had duly
passed on the first plea offer to Arredondo, and that
Arredondo had simply fabricated his testimony to the
contrary.
The district court went on to hold that the fabrications it
identified had significantly obstructed the administration of
justice, thereby amounting to a contempt of court. It
described Arredondo’s testimony as involving “egregious,”
“blatant,” and “transparently false” perjuries. It also noted
that the perjured allegations of misconduct were integral to
Arredondo’s Section 2255 petition – the postconviction
litigation, which had consumed a significant amount of
judicial and public resources, had been founded chiefly on
falsehoods. Finally, the court reasoned that Arredondo’s false
testimony about Plachta had threatened to impose
unwarranted professional discipline on an attorney, which
also revealed a tendency to obstruct the administration of the
justice system.
Arredondo timely appealed from the contempt conviction
and the denial of postconviction relief.

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No. 02-1394 United States v. Arredondo 7
5See Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986) (testimony
of five prior incidents in which the defendant responded violently to the
presence of uniformed police officers, with proffer of three more
incidents, sufficed to estab lish “habit” under Fed. R. E vid. 40 6); United
States v. Floulis, 457 F. Supp. 1350, 1355 n.2 (W.D. Pa. 1978)
(permitting the IN S to prove that defendant had been informed of his right
to contact his consulate using evidence of INS’s routine office
procedures).
II
We find no basis for disturbing the district court’s factual
findings that Arredondo willfully fabricated the allegations
about Plachta’s misconduct in his affidavit and oral
testimony. The record plainly supports the finding that
Arredondo’s statements about the alleged second plea offer
were willfully false; indeed, Arredondo has not meaningfully
challenged this conclusion. However, Arredondo does
contest the finding that he lied about Plachta’s failing to pass
on the first plea offer. While the evidence for this conclusion
was controverted, it was sufficient to support the district
court’s finding. Plachta testified that he always passed on
plea offers to clients. He had already represented five to
fifteen criminal defendants in federal court at the time of
Arredondo’s trial, and had undertaken more representations
since then. In light of Plachta’s experience, his habit
testimony was admissible under Fed. R. Evid. 406 to show
that he acted in conformity with that habit in this case.5 We
cannot say the district court’s decision to credit Plachta’s
testimony about the first plea offer and its finding that
Arredondo willfully fabricated his contrary testimony were
clearly erroneous, especially in light of Arredondo’s
established lack of credibility in other matters such as the
second plea offer.
These findings eliminate the factual basis for Arrendondo’s
claim that his counsel provided ineffective assistance by
failing to pass on plea offers to him. Since that is the only
ground on which Arredondo has appealed the denial of his
8 United States v. Arredondo No. 02-1394
6An element of every contempt proceeding under 18 U.S.C. § 401(1)
is proof that the alleged contemptuous conduct was “in . . . or . . . near”
the presence of the court. Ibid.; see Vaughn, 752 F.2d at 1167. T his
element is to be understood “geographical[ly],” as requiring physical
proximity to the co urt’s presence. Nye v. United States, 313 U.S. 33, 48-
Section 2255 petition, we affirm the denial of his petition
without further discussion.
III
The remaining question is whether Arredondo’s
falsifications constituted contempt of court under 18 U.S.C.
§ 401.
The power to punish contempts is “inherent in all courts,”
Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S.
787, 795 (1987) (quotation marks omitted), allowing them to
protect themselves against assaults on their authority.
However, because this power may be exercised without many
of the normal procedural protections of a criminal trial, it is
subject to constitutional and statutory limitations. A federal
court has the power, codified in 18 U.S.C. §§ 401 and 401(1),
to punish “such contempt of its authority, and none other, as
[the following:] [m]isbehavior of any person in its presence
or so near thereto as to obstruct the administration of justice.”
This statutory language originated in the federal Act of 1831,
and represented a “drastic curtailment of the contempt power”
previously recognized. Bloom v. Illinois, 391 U.S. 194, 203
(1968).
The narrow category of contempts committed “in the actual
presence of the court” may be punished immediately by the
judge who saw or heard the offending conduct. Fed. R. Crim.
P. 42(b). This summary power is reserved for “exceptional
circumstances . . . such as acts threatening the judge or
disrupting a hearing or obstructing court proceedings.”
Vaughn v. City of Flint, 752 F.2d 1160, 1167 (6th Cir. 1985).
Other contempts, which need only be “in or near”6 the court’s

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No. 02-1394 United States v. Arredondo 9
49 (1941) (reversing contempt conviction of petitioners who used liquor
to coerce an infirm, elderly man into filing letters in federal district court
seeking to dismiss the man’s civil action against petitioners’ friend;
coercive actions took place over 100 miles from the district court). It may
be questioned whether Arredondo’s filing of false affidavits was
sufficiently “near” the district court to be punished as contempt. Our
precedents suggest that the answer depends on whether the court was then
in session. See Schmidt v. United States, 124 F.2d 17 7, 177 (6th Cir.
1941) (holding that defendant’s filing of false papers with clerk could not
be punished as contempt, “since it does not appear that the court was in
session at the time.”).
Neither party has disc ussed this issue. W e need not resolve it,
because in the evid entiary hearing that followed our first remand,
Arredondo orally repeated in the presence of the court the allegations
contained in his written affidavits. We will assume without deciding that
Arredondo’s affidavits were also given “in or near” the court’s presence,
because as discussed below, they nevertheless fall outside the scope of
contempt liability, as they d id not obstruct justice within the meaning of
§ 401.
presence, must be adjudicated according to the more
developed procedure of Fed. R. Crim. P. 42(a), the procedure
followed in this case, which mandates notice and an adversary
hearing. Even so, the Rule 42(a) procedure is “pretty
summary,” United States v. Oberhellman, 946 F.2d 50, 52
(7th Cir. 1991), since the offended judge may initiate the
proceeding without indictment, may impose sentence on the
convicted contemnor, and, in a nonjury case like this one,
may try the case himself. For this reason, contempt liability
under Rule 42(a) should be “circumscribed as narrowly as is
consistent with the maintenance of order and decorum
essential to the effective operation of the judicial system.” Id.
at 53.
A witness’s misconduct must “obstruc[t] the administration
of justice” in order to be punishable as contempt. 18 U.S.C.
§ 401(1); Vaughn, 752 F.2d at 1167. Arredondo’s main
argument for reversal is that even if he gave knowingly false
oral and written testimony in support of his Section 2255
petition, this was legally insufficient under the circumstances
here to constitute an obstruction of justice under § 401. We
10 United States v. Arredondo No. 02-1394
7Indeed, the facts given by the Supreme Court and in the lower
court’s opinion, 14 6 F.2 d 62 7 (3d Cir. 194 4), suggest that M ichael’s
falsifications may have be en self-serving. T he grand jury summ oned him
in the course of “a general investigation of frauds against the United
States.” Mic hael, 326 U.S. at 226. If the bankrupt’s assets were being
dissipated for imp roper purposes, then Michael might have faced
indictm ent.
review this mixed legal and factual question de novo. See
United States v. Baggett, 342 F.3d 536, 541 (6th Cir. 2003)
(applying this standard of review to obstruction of justice
enhancement under U.S. Sentencing Guidelines).
Two Supreme Court decisions provide important guidance.
In Ex parte Hudgings, 249 U.S. 378 (1919), the Court granted
a writ of habeas corpus to a federal witness who had been
imprisoned for contempt after giving implausible testimony
that he could not verify the handwriting of his own business
partners. The Court held that “in order to punish perjury in
the presence of the court as a contempt there must be added
to the essential elements of perjury . . . the further element of
obstruction to the court in the performance of its duty.” Id. at
383 (emphasis added). Cautioning against “mistakenly
attribut[ing] a necessarily inherent obstructive effect to false
swearing,” it emphasized the “potentiality of oppression and
wrong” that would arise if courts could summarily punish
witnesses for giving testimony with which the court
disagreed. Id. at 384.
The Court reaffirmed Hudgings in In re Michael, 326 U.S.
224 (1945), upon which Arredondo principally relies. A
grand jury subpoenaed Michael, a bankruptcy trustee, to
testify about numerous checks that had been written from the
bankrupt’s assets. He gave direct, unequivocal responses to
questions before the grand jury, but the district court found
that his answers were lies.7 The lower courts held Michael
guilty of contempt, reasoning that he had “block[ed] the
inquiry” of the grand jury by giving false testimony about the
purposes of the checks. Id. at 229. The Supreme Court

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No. 02-1394 United States v. Arredondo 11
8As the Fifth Circuit has observed, it may be questionable whether
Essex correctly interpreted the scop e of 18 U.S.C. § 150 3. See United
States v. Griffin, 589 F.2d 20 0, 204-06 (5th Cir. 1979). Essex used the
Suprem e Court’s § 401 contempt cases to interpret § 150 3, see 407 F.2d
at 217 -18, yet the operative provisions of these two statutes are not the
same. Section 40 1(1) prohibits misbehavior that “obstruct[s] the
administration of justice.” 18 U.S.C. § 40 1(1); see also Vaughn, 752 F.2d
at 116 8. Section 1 503 prohibits, among o ther kind s of conduc t,
unanimously reversed. It emphasized that the natural
tendency of all false testimony is to mislead the finder of fact,
but this does not, as such, render it contemptuous:
All perjured relevant testimony is at war with justice
since it may produce a judgment not resting on truth.
Therefore it cannot be denied that it tends to defeat the
sole ultimate objective of a trial. It need not necessarily,
however, obstruct or halt the judicial process. For the
function of trial is to sift the truth from a mass of
contradictory evidence, and to do so the factfinding
tribunal must hear both truthful and false witnesses.
Id. at 227-28.
We applied Michael in United States v. Essex, 407 F.2d 214
(6th Cir. 1969), to reverse the obstruction of justice
conviction of a witness who had filed a perjured affidavit.
After the trial court disbelieved Essex’s written testimony that
she had sexual relations with several jurors in the trial of
Jimmy Hoffa, see United States v. Hoffa, 247 F. Supp. 692
(E.D. Tenn. 1965) (denying Hoffa a new trial), she was
prosecuted and convicted under the federal obstruction of
justice statute, 18 U.S.C. § 1503. Essex, 407 F.2d at 215-16.
We noted that §1503 had grown out of the same 1831 act as
the federal contempt statute, 18 U.S.C. § 401, and therefore
concluded that the dispositive issue was whether Essex’s “act
of filing a false affidavit . . . constitute[d] a contemptuous act
within the meaning of . . . § 1503.” Essex, 407 F.2d at 217.
We held that it did not. Ibid.8
12 United States v. Arredondo No. 02-1394
“corruptly . . . influenc[ing], obstruct[ing], or imped [ing], or
endeavor[ing] to influence, obstruct, or impede, the due administration of
justice.” 18 U .S.C. § 150 3(a).
The difference in language suggests that § 1503 may have a broader
reach than § 401. Moreover, assigning a wider scop e to § 150 3 liability
raises no procedural or separation of powers concerns, because a violation
of § 1503 cannot be punished using the summary contempt mechanisms
of Fed. R. Crim. P. 4 2. See Griffin , 589 F .2d at 205 -06. Instead, a
prosecution must be initiated by indictment and the case must be tried
before a new judge. Accordingly, we have “severely limited” Essex’s
holding in subsequent § 150 3 cases. United States v. Co llis, 128 F.3d
313, 318 (6th Cir. 1997) (upholding § 1503 co nviction of prisoner who
submitted a fabricated letter attesting to his good character in an attempt
to influence his sentencing hearing).
Neve rtheless, these criticisms o f Essex do not extend to the § 401
context. Essex remains instructive authority on the scope of contempt
liability in this circuit.
Michael and Essex together make clear that “false
testimony alone,” whether written or oral, “will not amount to
contempt of court.” Ibid. The government argues that several
grounds distinguish Arredondo’s conduct from the conduct at
issue in Michael and Essex. Upon consideration, however,
we must reject each of these arguments for upholding
Arredondo’s contempt conviction.
First, the government argues that because Arredondo’s false
allegations concerned the performance of his attorney in his
criminal trial, they obstructed the operation of the justice
system in a way that routine perjuries do not. While the
government cites no authority for this proposition, the
Supreme Court upheld a contempt conviction for false
swearing under a somewhat similar theory in Clark v. United
States, 289 U.S. 1 (1933). Clark was a venire member who
lied her way on to the jury with representations that she was
unbiased, despite the fact that she was an ally of the defendant
who would have voted for an acquittal regardless of the
evidence. Id. at 8-11. The Supreme Court held that she had
“trifled with the court of which she was a part, and made its
processes a mockery,” which was “contempt, whatever else

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No. 02-1394 United States v. Arredondo 13
it may be besides.” Id. at 12. However, Clark and its
progeny, e.g., In re Brogdon, 625 F. Supp. 422 (W.D. Ark.
1985) (upholding contempt conviction of juror who lied about
his bias and prior knowledge of events at trial), are
distinguishable from Arrendondo’s case. Jurors and
veniremen are officers of the court. Their conduct is
governed by a separate section of the federal contempt statute,
18 U.S.C. § 401(2) (prohibiting “misbehavior” by a court
officer), as well as the generally applicable contempt
provision of 18 U.S.C. § 401(1). Here, Arredondo was only
a party, not an officer of the court. Clark is also
distinguishable from Arredondo’s case in that Clark’s
falsehoods interfered with the machinery of the very trial in
which she participated. As the Supreme Court later
explained, Clark’s perjury “prevent[ed] the . . . formation of
a proper judicial tribunal.” Michael, 326 U.S. at 228. In
contrast, while Arredondo’s falsehoods could be said to be
about the “administration of justice,” 18 U.S.C. § 401,
inasmuch as the subject matter of his testimony and his
Section 2255 petition was the supposed ineffective assistance
rendered by his counsel in an earlier court proceeding, his
falsehoods did not interfere with the administration of justice
in his Section 2255 proceeding, aside from the necessary
obstructive effect exercised by all false testimony. As
Michael makes plain, that is not enough for contempt.
Second, the government seeks to distinguish Michael on the
ground that Arredondo was not, like Michael, a passive
witness called to the stand. Instead, Arredondo gave his false
testimony in a postconviction proceeding that he himself had
initiated. The government therefore argues that Arredondo’s
act of filing a Section 2255 petition substantially premised on
false accusations suggests a degree of willful interference
with the judicial process greater than the typical episode of
perjury. We acknowledge the inherent plausibility of this
argument. However, it cannot be squared with our decision
in Essex. After all, Essex submitted her false affidavit in
support of Hoffa’s motion to secure a retrial. If the court had
believed her, it might have ordered a lengthy, costly new
14 United States v. Arredondo No. 02-1394
9As Judge Hand put it: “It could not be enough for a witness to say
he did not remember where he had slept the night before, if he was sane
and sobe r, or that he cou ld not tell whether he had been married more than
a week.” Appel, 211 F. at 495-96; In re Weiss, 703 F.2d 6 53, 663 (2d Cir.
1983) (characterizing such responses as a “middle category of testimonial
obd uracy” between perjury and refusal to respond). An answer need not
be evasive to be punishable. “On Venus” would also be a contemptuous
response to the question of a party’s whereabouts the night before.
court proceeding that likewise would have been premised on
falsehood. Yet we held that Essex’s conduct was not “a
contemptuous act,” and we take the same view of
Arredondo’s conduct here. Essex, 407 F.2d at 218.
Finally, the government suggests that Arredondo’s false
statements are contemptuous because they were not merely
false, but “blatant fabrications.” The district court also
appears to have taken this view. Courts may indeed punish as
contempt testimony that is “a mere sham.” United States v.
Appel, 211 F. 495, 497 (S.D.N.Y. 1913) (L. Hand, J.); see
Hudgings, 249 U.S. at 383 (approving Appel); Collins v.
United States, 269 F.2d 745 (9th Cir. 1959). A witness’s
refusal to respond to questions is a classic form of contempt.
United States v. Seavers, 472 F.2d 607, 611 (6th Cir. 1973).
By extension, an answer patently false on its face is
equivalent to a refusal to testify and may be similarly
punished.9 However, “this power must not be used to punish
perjury.” Appel, 211 F. at 496. To prevent the exception
from swallowing the rule, courts employ a technical
distinction: testimony is not a contemptuous sham unless the
court can take “judicial notice” of its falsity, see, e.g., Harbor
Tank Storage Co. v. De Angelis, 204 A.2d 13, 17 (N.J. Super.
App. Div. 1964), or, put differently, unless the falsity is
apparent without reference to extrinsic evidence in the record.
The test is whether “on its mere face, and without inquiry
collaterally,” the testimony is “not a bona fide effort to
answer the questions at all.” Michael, 326 U.S. at 228-29
(quoting Appel, 211 F. at 496).

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No. 02-1394 United States v. Arredondo 15
By this standard, Arredondo’s testimony, though weak, was
not a contemptuous sham. His testimony about Plachta’s
failure to convey the first plea offer certainly was not false on
its face. The district court faced a significant evidentiary
conflict about this matter, which it resolved against
Arredondo. The question is closer with respect to
Arredondo’s testimony about Plachta’s failure to pass on the
(nonexistent) second plea offer. His original affidavit that
stated that Arredondo had seen Plachta and Hluchaniuk
talking on the day of trial and that Plachta had shaken his
head “no.” After the court rejected Arredondo’s petition, he
filed a new affidavit with his motion for reconsideration, to
which he added an assertion that he had overheard relevant
snippets of the supposed plea conversation, and that
Hluchaniuk had shaken his head “no.” It is hard to see why
these significant facts were not included in the original
affidavit. The district court correctly noted that Arredondo’s
oral testimony in the Section 2255 hearing was evasive, and
his own statements on this issue cast grave doubt on the truth
of his assertions. Nevertheless, the second affidavit (and
Arredondo’s corresponding oral testimony at the Section
2255 hearing) was not patently false on its face. There were
inconsistencies between the two affidavits, which properly
influenced the district court’s decision to reject Arredondo’s
claims, but not the sort of blatant contradiction that might
permit a contempt finding. Cf. Collins, 269 F.2d at 751
(affirming contempt conviction where witness told grand jury
three different, contradictory stories about his role in a murder
and burglary). Moreover, Arredondo’s testimony as to the
crucial issue in the case – the handling of the plea offer or
offers – does not appear clearly false until placed in the
context of the other testimony. If Assistant United States
Attorney Hluchaniuk had testified, for example, that he did
make a second plea offer to Plachta on the day of trial, while
Plachta denied it, then the factfinder might have hesitated to
hold that Arredondo fabricated his testimony about Plachta’s
handling of that offer. Since the falsity of Arredondo’s
testimony cannot be plainly established without invoking the
16 United States v. Arredondo No. 02-1394
“testimony of other witnesses,” Michael, 329 U.S. at 229, his
conduct does not fall under the Appel exception.
Arredondo’s false testimony was harmful. It compelled the
expenditure of scarce judicial resources in the district court
and in this court to analyze his allegations, and it threatened
unwarranted professional discipline of an attorney. It was
also self-serving: Arredondo sought to wangle relief from a
sentence duly imposed on him for serious drug crimes. We
are sympathetic to the district court’s view that Arredondo’s
false testimony had a sufficiently unusual obstructive effect
to justify a finding of contempt. Indeed, the district court’s
decision appears have been guided in part by dicta in our own
prior opinion in this case. See Arredondo, 177 F.3d at 790
(stating that “courts should not . . . refus[e] to punish
demonstrably false claims of ineffective assistance of
counsel.”). However, after full briefing and argument on the
issue, we conclude that contempt liability cannot be imposed
in this case, consistently with a fair reading of Michael and
Essex. It remains open for “courts . . . to punish” such false
claims by means of a perjury prosecution.
IV
For the foregoing reasons, Arredondo’s conviction for
contempt is REVERSED and the denial of his petition for
postconviction relief from his sentence is AFFIRMED.

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