UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________________________________________________________
No. 94-3159
________________________________________________________________
BRIEF OF APPELLANT
________________________________________________________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxx xxxxxxx, Defendant-Appellant.
________________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________________________________________
AMY SEIDMAN
ASSISTANT FEDERAL PUBLIC DEFENDER
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
(202) 208-7500
Counsel for Appellant
District Court
No. 93 CV2420 (RCL)
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
Pursuant to Circuit Rule 28(a)(1), appellant hereby states as
follows:
A. PARTIES AND AMICI: This appeal arises from an
adjudication of criminal contempt entered after a nonjury trial
involving the defendant-appellant, xxxxxxx xxxxxxx, and the plaintiff-appellee, the United States of America. These were the only
parties below and are the only ones on appeal. There are no
intervenors or amici. The appellant, who was a non-party witness
in a civil trial that was pending in the district court, was held
in contempt for failing to appear at a deposition relating to the
civil case.
B. RULINGS UNDER REVIEW: This is an appeal from an order of
the district court, the Honorable Royce C. Lamberth, dated November
3, 1994, adjudging appellant guilty of criminal contempt of court.
C. Related Cases: There are no related cases and this case
has not previously been before this Court.
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________________________________________________________
No. 94-3159
________________________________________________________________
BRIEF OF APPELLANT
________________________________________________________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxx xxxxxxx, Defendant-Appellant.
________________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________________________________________
ISSUE PRESENTED
I. Whether the evidence was sufficient for the court to find
beyond a reasonable doubt that Ms. xxxxxxx wilfully and knowingly
disobeyed or disregarded a court process or order by failing to
comply with a subpoena issued by an attorney without court
involvement commanding that Ms. xxxxxxx appear in the attorney's office
for a civil deposition.
STATUTES AND REGULATIONS
The pertinent statutes and rules appear in the addendum to
this brief.
JURISDICTION
The district court had jurisdiction over this case pursuant to
18 U.S.C. § 3231. A timely notice of appeal from the final
judgment of the district court having been filed on November 3,
1994, this Court has jurisdiction over this appeal under 28 U.S.C.
§ 1291.
STATEMENT OF THE CASE
A.Nature of the Case, Course of Proceedings, and Disposition in the Court Below
Ms. xxxxxxx was served with a subpoena on September 22, 1994, at
3:00 p.m. at her place of business, xxxxxxx Salon in
Suitland, Maryland. (A. 3)
She was subpoenaed to appear for a
deposition in a civil action pending in United States District
Court for the District of Columbia, Bessye Neal, et al. v. Margaret
Moore, Acting Director, D.C. Department of Corrections, et al., No.
93 CV. 2420 (RCL). The deposition was scheduled for September 26,
1994 at 9:00 a.m. at the law firm of Piper & Marbury in Washington,
D.C. When Ms. xxxxxxx failed to appear at the plaintiffs' attorneys'
office on September 26, 1994, the district court issued an
attachment for contempt. (A. 2) On September 27, 1994, Ms. xxxxxxx
voluntarily appeared in court and was released on the condition
that she appear at the deposition, which was re-scheduled for the
next day. (9/27/94 Tr. 3-5) She then appeared for the deposition
on September 28, 1994. The nonjury trial on the criminal contempt
charge was held on November 2, 1994. On that same date, the
district court convicted Ms. xxxxxxx of contempt, in violation of 18
U.S.C. § 401(3) and sentenced her to a term of seven days
incarceration. (A. 120) Ms. xxxxxxx filed a timely notice of appeal.
(A. 122)
B. Statement of Facts
1. The Government's Case.
The government presented its case through three witnesses:
Carol Patterson, Mary Elizabeth Gately and Walter Lee Willis.
Piper & Marbury, counsel for the plaintiffs in a pending civil
action in district court, prepared a subpoena with a witness fee
check for Ms. xxxxxxx to testify at a deposition in the law firm's
office on September 26, 1994 at 9:00 a.m. (11/2/94 Tr. 11, 16-17)
Because no efforts were made to prearrange a date for the
deposition, Ms. xxxxxxx received less than four days notice of the
deposition. (11/2/94 Tr. 19) The subpoena was signed by Mary
Gately, an attorney for Piper & Marbury, who had had no prior
contact with Ms. xxxxxxx, a non-party witness in the civil case.
(11/2/94 Tr. at 17) On September 22, 1994 at 11:00 a.m., Walter
Willis, a process server, called Ms. xxxxxxx at her job to inform her
that he would be stopping by to deliver a subpoena. (11/2/94 Tr.
27) He also briefly read off the names of the parties and the
place and time of deposition. (11/2/94 Tr. 27-28) Ms. xxxxxxx told
Willis that she had no idea who the parties were, had no documents
to produce, and therefore felt uncomfortable about accepting the
subpoena. (11/2/94 Tr. 27-28)
At 3:00 p.m., Willis arrived at Ms. xxxxxxx's work address and
gave her the subpoena. (11/2/94 Tr. at 28) Willis then read off
the text of the subpoena and explained to her that the check was a
witness fee. (11/2/94 Tr. 29, 31-34) Ms. xxxxxxx repeated that she
had no idea who the parties were or what her involvement in the
case was, and restated that she felt uncomfortable receiving the
document. (11/2/94 Tr. 35-36)
When Ms. xxxxxxx did not appear at the law office by 9:30 a.m.on
September 26th, Ms. Gately called the district judge's Chambers to
request a bench warrant. (11/2/94 Tr. 17-18) Prior to calling the
court, Gately made no attempt to locate or contact Ms. xxxxxxx. At
10:00 a.m., only one hour after the scheduled deposition time,
Gately personally appeared in court and requested a bench warrant.
(11/2/94 Tr. 18) The court immediately issued an attachment for
contempt, authorizing Ms. xxxxxxx's arrest. (A. 2). The attachment
was executed the next day when Ms. xxxxxxx voluntarily appeared in
court.
2. The Defense Case
Ms. xxxxxxx's only involvement in the pending civil action was as
a witness to an altercation that took place on September 5, 1994,
in and outside of the hair salon in which she worked. (11/2/94 Tr.
59, 63, 72) The altercation involved two patrons of the salon, a
Corporal Newsome and Sargeant Salley, who were employees at the
D.C. Department of Corrections, one of the parties to the civil
case. (11/2/94 Tr. 59, 63, 64) During the incident, Newsome's car
struck Salley. (11/2/94 Tr. 72-73)
After witnessing the events, Ms. xxxxxxx called the police.
(11/2/94 Tr. at 73) When the police arrived on the scene, Ms. xxxxxxx
was cooperative, helped calm down Salley and even gave the police
a statement describing what she had seen. (11/2/94 Tr. 73-74) Ms.
xxxxxxx had no other involvement in the dispute, which became part of
the pending civil action. (11/2/94 Tr. 73-74)
There was nothing on the subpoena itself indicating it was a
court order or otherwise was issued by the court; it did not have
a seal and was not signed by a judge. (A. 3) Moreover, the
subpoena did not state that there were any penalties for failure to
appear such as contempt charges that could result in imprisonment
and/or a fine. When Ms. xxxxxxx was served with the subpoena, she did
not recognize the parties' names and was confused as to her
connection to the case. (11/2/94 Tr. 33, 53, 56, 75-77, 85, 88,
92) The process server only informed Ms. xxxxxxx that it was important
for her to appear but did not explain the ramifications of her
failure to appear or even that the subpoena was tantamount to a
court order. (11/2/94 Tr. at 33) The subpoena was signed by an
attorney, Mary Gately, and commanded Ms. xxxxxxx to appear at a law
office rather than in court. (11/2/94 Tr. 17) The subpoena,
including the section for production of documents, was completed by
typewriter, except there was an "x" written in blue pen in the
section for personal attendance. (11/2/94 Tr. at 42-43) Willis
did not know how, why or when the handwritten marks were placed on
the subpoena. (11/2/94 Tr. 43)
After accepting the subpoena from Willis, Ms. xxxxxxx still felt
that the case had nothing to do with her and she was confused about
what the subpoena required her to do. (11/2/94 Tr. 33, 53, 56, 75-77, 85, 88, 92) Because she had never been subpoenaed before, she
did not know about the subpoena's legal effect. (11/2/94 Tr. 76)
She did not know or even recognize the parties named in the
subpoena. The attorneys who subpoenaed her did not contact her
before she was served. (11/2/94 Tr. 75-77) Additionally, Ms. xxxxxxx
did not have any of the documents requested in the subpoena and was
not the proper custodian of records or the person in charge of the
hair salon.
During the time when she received
the subpoena, Ms. xxxxxxx was "overwhelmed with grief," and "kind of dead" herself
because xxxxxxx xxxx, a close friend, recently had passed away. (11/2/94 Tr.
78) In fact, on September 23 and 24, 1994, a day or so after being served with
the subpoena, she attended the funeral and services for Mr. xxxx. (11/2/94 Tr.
at 78) She then went to Baltimore on September 25, 1994, the day before the
scheduled deposition, to visit her grandmother, who was more like a mother to
her. (11/2/94 Tr. at 78) Ms. xxxxxxx did not take the subpoena with her because
she was preoccupied with her friend's death, and did not realize that the deposition
was scheduled for the next day. Moreover, since she did not know the parties
or anything else about the case, she thought that she had been served mistakenly
and did not realize she would have to appear at the deposition. (11/2/94 Tr.
33, 53, 56, 75-77. 85, 88, 92) Because her grandmother suddenly took ill while
she was visiting, Ms. xxxxxxx unexpectedly stayed in Baltimore for most of the
day on September 26, 1994, the date of the deposition. (11/2/94 Tr. at 79)
In response to a message left at Ms. xxxxxxx's workplace
notifying her she was supposed to have been at the deposition, Ms.
xxxxxxx contacted attorney Harold Martin during the afternoon of
September 26th. (11/2/94 Tr. at 52) Mr. Martin explained that a
deposition merely meant that Ms. xxxxxxx would be giving another
"statement" regarding the incident she witnessed, and informed her
that the subpoena meant that she had to appear for the deposition.
(11/2/94 Tr. 52-54) Once she understood the meaning of the
subpoena and her legal obligations, Ms. xxxxxxx complied and appeared
for the deposition two days later on September 28, 1994. (11/2/94
Tr. 81-82)
3. The Court's Findings
After a nonjury trial the district court found beyond a
reasonable doubt that Ms. xxxxxxx was "guilty of criminal contempt for
failing to obey a lawfully issued and properly served subpoena, and
that she had no legal excuse for her failure to appear at the
deposition on September 26th. (11/2/94 Tr. 103) Despite Ms. xxxxxxx's
testimony that she was confused about her responsibilities under
the subpoena, and was distracted by her friend's death and her
grandmother's illness, the court concluded that Ms. xxxxxxx
intentionally and contumaciously disobeyed the subpoena. (11/2/94
Tr. 103-105)
SUMMARY OF ARGUMENT
The criminal contempt statute, 18 U. S.C. § 401 (3), grants
federal courts the authority to punish by fine or imprisonment
contempt for their authority as exhibited by any disobedience or
resistance to any lawful writ, process, order, decree, or command.
Case law is consistent in requiring an intent to disobey or
disregard an order of the court to support a contempt conviction.
Here, the district court mistook Ms. xxxxxxx's confusion as to her
obligations under a civil subpoena she received "for the
contemptuous conduct which defies rulings and deserves punishment."
Sacher v. United States, 343 U.S. 1, 8 (1952). Ms. xxxxxxx's failure
to appear was nothing more than a lay person's innocent
misunderstanding of a technical legal process in a civil action in
which she was merely a potential witness.
The conviction cannot stand. The conclusion is inescapable on
this record that Ms. xxxxxxx was not guilty beyond a reasonable doubt
of criminal contempt. Ms. xxxxxxx's action in failing to appear for
the first scheduled deposition did not come close to the type of
obstructive, contumacious conduct that the criminal contempt
statute was meant to punish. Contempt is a willful disregard or
disobedience of public authority. In this case, there is
insufficient evidence to support any such finding with respect to
this critical element under § 401(3). Therefore, Ms. xxxxxxx's
contempt conviction should be reversed.
ARGUMENT
I. THE EVIDENCE WAS INSUFFICIENT FOR THE COURT TO FIND BEYOND A REASONABLE DOUBT THAT MS. xxxxxxx WILFULLY AND KNOWINGLY DISOBEYED
OR DISREGARDED A COURT PROCESS OR ORDER BY FAILING TO COMPLY WITH A SUBPOENA ISSUED BY AN ATTORNEY WITHOUT COURT INVOLVEMENT COMMANDING THAT MS. xxxxxxx APPEAR IN THE ATTORNEYS' OFFICE FOR A CIVIL DEPOSITION.
A.Standard Of Review.
This Court reviews a trial court's denial of a motion for
judgment of acquittal de novo. This Court does not defer to the
district court, but rather must make its own independent judgment
regarding the sufficiency of the evidence, viewing it in the light
most favorable to the government. See Burks v. United States, 437
U.S. 1, 16-17 (1978); United States v. Johnson, 952 F.2d 1407, 1409
(D.C. Cir. 1992). Ms. xxxxxxx's conviction must be reversed if, on the
evidence presented, a reasonable mind could not find guilt beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319
(1979).
B. The Record Lacks Sufficient Evidence That Ms. xxxxxxx
"Wilfully" Violated The Subpoena.
This Court must reverse the contempt conviction because there
is insufficient evidence that Ms. xxxxxxx wilfully violated the
subpoena. Criminal contempt requires that Ms. xxxxxxx's violation of
the subpoena was wilful. In Ratzlaf v. United States, 114 S. Ct.
655, 658 (1993), the Court held that "wilfulness" requires that the
actor knows that the actions he or she undertakes are unlawful.
Proof merely that the actor wilfully committed the acts absent
knowledge that the acts violate a "known legal duty" is
insufficient. Id. at 659. In the present case, although the
record indicates that Ms. xxxxxxx failed to appear for the first
scheduled deposition, there is no evidence that she knew that the
subpoena imposed a legal duty for her to be at the deposition. The
subpoena on its face did not indicate that it was a court "order"
or "process".
It also lacked any judicial seal or stamp, or
signature by a judge or court clerk. Moreover, the subpoena did
not indicate that the court authorized its issuance. Finally,
there was no explanation as to any penalties for failure to appear.
The government failed at the trial to present any evidence that Ms.
xxxxxxx had knowledge that the subpoena was an order or command from
the court, as opposed to a directive issued by an attorney. Since
the evidence failed to establish that Ms. xxxxxxx knew the subpoena
constituted a court order, it follows that she could not have
wilfully and contumaciously disobeyed it.
During the contempt proceeding, Ms. xxxxxxx testified that she did
not realize that the subpoena compelled her to be at the
deposition. (11/2/94 Tr. 33, 53, 56, 75-77, 85 88, 92) She had
never been subpoenaed to testify previously and did not understand
that she was legally obligated to appear at the law office for the
deposition. (11/2/94 Tr. 76) The process server did not inform
her that she was required under law to appear. Thus, Ms. xxxxxxx did
not understand that the subpoena was tantamount to a court order
and that certain penalties, a fine or imprisonment, could be
imposed for failure to appear. As a result, Ms. xxxxxxx did not find
out about the legal effect of the subpoena until she spoke with Mr.
Martin after the contempt attachment was issued.
Not only was Ms. xxxxxxx oblivious to the legal effect of the
subpoena, but her actions show that she did not intend to disregard
it intentionally. In Sykes v. United States, 444 F.2d 928, 930 (D.
C. Cir. 1971), this Court held that there is no wilful violation if
the actor violates a court order based on preoccupation,
forgetfulness, and confusion. Thus, an essential element of
criminal contempt "is an intent, either specific or general, to
commit it." Id. at 930. Sykes involved an attorney who was
convicted of contempt for failing to appear as counsel in a matter
before the District of Columbia Court of General Sessions. The
attorney had forgotten about that particular court date because he
was preoccupied with another case that was scheduled on the same
date in the Court of Appeals. In reversing the conviction, this
Court stated that "[b]y definition, contempt is a 'wilful disregard
or disobedience of a public authority.'" (quoting Bouvier's Law
Dictionary (3d revision 1914); Black's Law Dictionary (revised 4th
ed. 1968)). Id. at 930. The Court went on to explain that the
requisite intent could be inferred from conduct which "discloses a
reckless disregard" (in the attorney's professional duty) but that
in this case
. . .there was no evidence that [the
appellant] deliberately or recklessly
disregarded his obligation to the court, or
that he intended any disrespect for the court.
On the contrary it is clear from his
unchallenged explanation that his failure to
appear was not by design but resulted from a
lapse of memory, preoccupation with another
case, and confusion as to dates. There were
no unusual circumstances justifying a
conclusion that his conduct was reckless. . .
Nor was there any suggestion that the
appellant's lapse was anything but an isolated
aberration.
Id.
The analogous situation is present in this case. Ms. xxxxxxx did
not deliberately ignore the subpoena, but failed to appear because
of a combination of preoccupation, forgetfulness, and confusion.
She was preoccupied by the grief of Mr. Ward's death and by her
elderly grandmother's illness. (11/2/94 Tr. 52-54, 78-79) She
also was confused about the requirements of the subpoena as she
knew nothing about the legal effect of the subpoena or about the
litigation. Since she did not recognize the parties' names on the
subpoena, she did not know that the case involved the incident she
had witnessed. Because the process server did not know anything
about the facts of the case, he merely read off the subpoena itself
and did not tell Ms. xxxxxxx anything more about her connection to the
case. This confusion, in combination with her preoccupation with
Mr. Ward's death and her grandmother's illness, caused Ms. xxxxxxx to
fail to appear. As a result, her non-appearance was not by design.
As this Court has explained, knowledge that one's act is
wrongful and a purpose to nevertheless do the act are prerequisites
to criminal contempt, as to most other crimes." In Re Brown, 454
F.2d 999 (D.C. Cir. 1971). Therefore,"[g]ood faith pursuit of a
plausible though mistaken alternative is antithetical to
contumacious intent." Id. at 1007 (footnote omitted). The
evidence does not support a finding beyond a reasonable doubt that
Ms. xxxxxxx acted with a contumacious intent. Although the court found
that she acted intentionally, it failed to make a specific finding
that her failure to appear was accompanied by a contumacious
intent. (11/2/94 Tr. 104) The record is insufficient on that
score to support a contempt conviction. Ms. xxxxxxx's mistaken
construction of the subpoena was one which was adopted in good
faith and which, given the subpoena's failure to identify itself as
a court order and her confused state of mind, was plausible.
In cases involving attorney's failures to timely appear in
court, this Court has emphasized that a contempt conviction must be
supported by an intent to disobey or disregard an order of the
court. In DeVaughn v. District of Columbia, 628 F.2d 205 (D.C.
Cir. 1980), this Court held that to justify a finding of criminal
contempt, there must have been evidence that "Miller deliberately
or recklessly disregarded his obligation to the court, or intended
some disrespect to the court. At the most Miller's explanation
established negligence, or perhaps that he was afflicted with the
occupational weakness of lawyers who perceive not how Time moves."
Id. at 207. Because the evidence established that Ms. xxxxxxx was a
lay person unfamiliar with the civil litigation process and her
obligations under the subpoena, the prosecution failed to prove
beyond a reasonable doubt that she deliberately disregarded her
legal responsibilities or intended some disrespect to the court.
See also In Re Farquhar, 492 F.2d 561, 564 (D.C. Cir. 1973)
(reversing and remanding the conviction of an attorney for criminal
contempt for a late appearance before one judge due to fact that a
matter before another judge ran later than anticipated.).
Courts in other circuits have required the same element of
intent in their construction of "wilfulness." For example, the
Ninth Circuit defined willfulness in the context of criminal
contempt as "a deliberate or intended violation, as distinguished
from an accidental, inadvertent, or negligent violation of an
order." Falstaff Brewing Corporation v. Miller Brewing Company,
702 F.2d 770, 782 (9th Cir. 1983). The Fifth Circuit has stated,
"Engrafted upon [the language of 18 U.S.C. § 401(3)] is the
requirement of both a contemptuous act and a willful, contumacious,
or reckless state of mind." In the Matter of Joyce, 506 F.2d 373,
378 (5th Cir. 1975) (citing Farquhar). The U.S. District Court for
the Western District of Pennsylvania stated that willfulness in
violating a court order "means knowing that one's act is wrongful
and having a purpose nevertheless to do the act or acts at issue."
United States v. Franchi, 786 F. Supp. 516, 519 (W.D. Pa. 1991).
The Third Circuit stated the following in a case in which it
reversed the convictions of two attorneys who were convicted of
contempt for advising a client to not attend a deposition for which
he had been subpoenaed:
The mere failure to comply with a subpoena
upon its receipt, without more, is not in all
cases enough to sustain a conviction for
criminal contempt. 'The crime of criminal
contempt requires a specific intent to
consciously disregard an order of the court.'
These cases indicate that the trial court must look beyond the
actual act of disobeying the court order to the state of mind of
the actor. It is clear that most courts apply criminal contempt
only in cases in which the defendant knowingly disobeyed an order
of the court with a sense of defiance or purposeful disregard for
the court's authority. Courts should not uphold a conviction based
on carelessness on the part of the defendant in not inquiring about
the significance of a subpoena and its relevance to her. While the
act may be blameworthy in many respects, it was not an intended or
deliberate violation of the court order because the defendant did
not know that it was, in fact, an order of a court.
In United States v. Greyhound Corporation, 508 F.2d 529 (7th
Cir. 1974), the court sets out a standard for determining
willfulness that is in accordance with criminal law, rather than a
standard concerned with a court's authority over enforcement of
court decorum and procedure.
Willfulness for criminal contempt may, as in
other areas of criminal law, be inferred from
the facts and circumstances in proof. . . .In
a criminal contempt case involving a court
order,. . . the court should consider the
entire background behind the order--including
the conduct that the order was meant to enjoin
or secure, the interests that it was trying to
protect, the manner in which it was trying to
protect them, and any past violations and
warnings--in determining whether the order is
sufficiently specific and in determining
whether the defendant knew or should have
known that his conduct was wrongful.
Id. at 532.
This language charges trial courts to inquire into facts
beyond the basic one that a witness consciously chose not to comply
with a subpoena, to the reasons why the witness made that choice.
In the case at hand, Ms. xxxxxxx was under a great deal of emotional
stress when she was served with the subpoena, and she was
understandably confused about what it had to do with her, not
having ever seen the names of the parties before and not having
been contacted by any attorney requesting her presence to inform
her as to why her testimony was required.
The fact that Ms. xxxxxxx voluntarily appeared in court the day
after the scheduled deposition and voluntarily agreed to be deposed
a day later, when the attorneys involved finally informed her of
why her deposition was required, goes to show that her failure to
appear was done without knowledge of her legal obligations under
the subpoena without any intent to show disrespect for the court.
See Sykes, 444 F.2d at 930. Further, as recognized by both the
Greyhound and Sykes courts, the fact that Ms. xxxxxxx had not violated
court orders previously is evidence of a lack of knowledge and
intent. Greyhound, 508 F.2d at 532; Sykes, 444 F.2d at 930.
Section 401(3) also requires a showing beyond a reasonable
doubt of "[d]isobedience or resistance to [the court's] lawful
writ, process, order, rule decree, or command." It is well settled
that a criminal contempt conviction under this provision may not be
premised on the violation of a court order unless the terms of the
order are "clear and specific, and leave no doubt or uncertainty in
the minds of those to whom it is addressed." United States v.
Joyce, 498 F.2d 592, 596 (7th Cir. 1974). See also, e.g., United
States v. Turner, 812 F.2d 1552, 1565-66 (11th Cir. 1987); United
States v. Moschiano, 695 F.2d 236, 252-53 (7th Cir. 1982), cert.
denied, 464 U.S. 831 (1983); In re Brown, 454 F.2d at 1008 n. 49.
Moreover, "[t]o serve as a valid basis for contempt, the court's
direction must be clear and unequivocal at the time it is issued."
Traub v. United States, 232 F.2d 43, 47 (D.C. Cir. 1955)(footnote
omitted). Because the subpoena failed to indicate that it was
issued through the court and was enforceable through its contempt
power, it was not sufficiently "clear and unequivocal" to serve as
a valid basis for a contempt conviction.
Ms. xxxxxxx failed to comply with the subpoena because she was
confused as to her legal obligations and as to her connection to
the underlying civil case. Moreover, she was distracted and
emotionally distraught at the time. Under these circumstances, the
evidence failed to prove beyond a reasonable doubt that she
willfully violated the court's order or process.
CONCLUSION
For the foregoing reasons, the adjudication of criminal
contempt should be reversed and the contempt charges should be
dismissed.
Respectfully submitted,
A. J. Kramer
Federal Public Defender
_______________________
Amy Seidman
ASSISTANT FEDERAL PUBLIC DEFENDER
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
Counsel for Appellant
CERTIFICATE OF LENGTH
I HEREBY CERTIFY that the foregoing brief for appellant, Mark
Anthony Hilson, does not exceed the number of words permitted by
Circuit Rule 28(d).
_________________________________
Amy Seidman
Assistant Federal Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that two copies of the foregoing Brief and
one copy of the Appendix for Appellant have been delivered by hand
to the United States Attorney's Office, John R. Fisher, Esq.,
Chief,Appellate Division, Room 4229, 555 Fourth Street, N.W.,
Washington, D.C. 20001, this 1st day of May, 1995.
____________________________________
Amy Seidman
Assistant Federal Public Defender