461 F.2d 345 (7th Cir. 1972)
Defendant Seale and seven other persons were indicted for violating the Federal Anti-riot Statute and for conspiracy to violate it (18 U.S.C. §§ 2101 and 371).
When Seale and his co-defendants were arraigned on April 9, 1969, Charles R. Garry of the California Bar informed the district judge that he would represent Seale and defendants Hoffman, Weiner, and Froines at the trial. September 24, 1969, was fixed as the trial date.
At pretrial proceedings on August 27, 1969, co-counsel William Kunstler advised the judge that the defendants would be represented “by a trial team,” and that Mr. Garry was chief counsel and “essentially will be representing [Seale] assuming that he [Garry] gets back in time from [a] gall bladder operation.” A continuance of the trial date, requested on the grounds of pretrial publicity and conflicting litigation schedules of counselors Kunstler and Garry, was denied.
On September 9, 1969, Garry requested a postponement of the trial date until November 15 because of the necessity of his undergoing a gall bladder operation at the conclusion of a California trial in which he was then engaged. This postponement was also denied. The court noted that Messrs. Michael Tigar, Irving Birnbaum, and Stanley Bass had also entered appearances for Seale, and therefore concluded that it was unnecessary to give Seale an opportunity to secure other counsel in place of Garry. In response to the complaint that these attorneys were engaged solely for special pretrial work or were only local counsel and were never intended to function as trial counsel, the trial judge stated there was no such thing as a limited appearance in a criminal case.1
At the commencement of the trial proceedings, Mr. Kunstler filed a written appearance on behalf of Seale2 and three other defendants. He qualified his statement of representation to the court by saying that all defendants took the position they were not fully represented in Mr. Garry’s absence and asked that each defendant be permitted to make a statement to that effect. The court disallowed the request. Co-counsel, Mr. Weinglass, informed the court that Seale was in fact without counsel but, relying on the appearances filed in Seale’s behalf, the court stated that was not a fact and refused to hear argument on that point. When Seale was introduced to the group of prospective jurors, the court informed them that Seale was represented by Messrs. Garry, Tigar, Birnbaum, and Bass. Asked if there was additional counsel for Seale, Mr. Kunstler stated he had filed an appearance, and the court included Mr. Kunstler in the list of Seale’s counsel.
On September 26, after the jury had been impanelled but prior to hearing the evidence, the court denied Seale’s motion requesting a continuance until Garry could be present to represent him and requesting dismissal of his attorneys of record in the event no continuance was allowed. On the same day, after the opening statements of defense counsel, Seale unsuccessfully attempted to make his own opening statement, and Kunstler refused to make an opening statement on Seale’s behalf on the ground that Kunstler was not Seale’s attorney. The court announced:
“If any defendant here has any rights which he perceives to have been violated by going ahead with this trial with lawyers that have appearances on file, without the attendance of Mr. Garry, their rights are there.”
Thereafter the trial judge relied completely on Kunstler’s written appearance as counsel for Seale as being dispositive of Seale’s claim he was not represented and of Kunstler’s protestations that he did not in fact represent Seale. On this basis the court refused to permit Seale to represent himself. Accordingly, Seale’s October 20 pro se motion to represent himself was denied, as was Kunstler’s October 22 motion to withdraw as counsel for Seale.
On subsequent occasions Seale vehemently complained that his Sixth Amendment right to counsel of his choice and his right to represent himself were being denied. Several times Seale attempted to represent himself. He was bound and gagged on the afternoon of October 29 in an effort to maintain courtroom decorum. This was a measure deemed permissible in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353. However, his restraints were removed on November 3.
On November 5, after six weeks of trial, the court sua sponte declared a mistrial as to Seale, and his trial was severed from that of his co-defendants.3 Acting under Rule 42(a) of the Federal Rules of Criminal Procedure, the court simultaneously adjudged Seale guilty of sixteen acts of contempt, resulting in a sentence of three-month terms apiece, or a total of four years’ imprisonment.4 Seale claims that nearly all sixteen acts arose out of his objections to Garry’s absence and his attempts to represent himself at the trial.
In the certificate of contempt, the trial judge found that each of the 16 specified acts of contempt
“constituted a deliberate and wilful attack upon the administration of justice in an attempt to sabotage the functioning of the Federal judicial system; that the misconduct was of so grave a character as to continually disrupt the orderly administration of justice.”
The legal standards relating to the acts of contempt charged will be discussed later in this opinion.
Contempt Trial Before Another Judge
In Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532, Mayberry’s pro se defense to criminal charges was marked by brazenly contemptuous conduct, including an insolent, personal attack on the trial judge. The judge did not act instantly, but waited until the conclusion of Mayberry’s trial to cite him for contempt. The Supreme Court reversed and remanded for a contempt hearing before another judge, holding that where the trial judge is the object of personal vilification carrying potential for bias and he does not act instantly to cite for contempt, he may not, as a matter of due process, sit in judgment on the alleged contemnor. Rather, the defendant is entitled to a hearing before a judge other than the one he has reviled.
The Government concedes that the aspersions cast upon the trial judge by Seale were of the same character as Mayberry’s.5 Our review of the record finds the concession well taken. However, the Government seeks to avoid Mayberry’s disqualification requirement on the ground that the trial judge was justified in personally citing Seale as an emergency measure to prevent a complete breakdown of the trial and to salvage the proceedings against the remaining defendants. We cannot agree.
The mistrial and severance of Seale were the emergency measures taken to insure a fair and orderly trial of the other defendants. Seale was cited for his past conduct as a finale just before he was released from the courtroom. It is argued that this was necessary for its deterrent effect on the remaining defendants who had already indicated their propensity toward misbehavior. At least in the absence of personal embroilment (a matter which we do not reach), the trial judge could have cited Seale for contempt instantly even though he was personally attacked. Mayberry, supra at 463, 91 S.Ct. 499; see Johnson v. Mississippi, 403 U.S. 212, 214, 91 S.Ct. 1778, 29 L.Ed.2d 423; Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353. The need for order in the courtroom to be achieved through the deterrent effect of an immediate citation of the contemnor is thought to override the possibility of bias on the part of the trial judge. See United States v. Meyer, 149 U.S.App.D.C. —, 462 F.2d 827 (1972).6
However, the deterrent effect on the remaining defendants is speculative by comparison.
We have no doubt that the able trial judge would have asked another judge to preside at Seale’s contempt hearing if Mayberry had been handed down before the contempt citation date.7 More importantly, there is nothing to indicate that summarily finding Seale in contempt upon declaration of the mistrial would be a more effective deterrent to misconduct by the other defendants than simply bringing home to them the fact that their former co-defendant had been charged with contempt and was bound over for a later hearing under Rule 42(b) of the Federal Rules of Criminal Procedure. Any generalized deterrent effect on the remaining defendants is simply too tenuous and improbable a ground to overbalance the inherent possibility of prejudice to Seale in the trial judge’s acting himself.8 “The normal constitutional presumption in favor of a due process hearing is therefore controlling.” United States v. Meyer, supra at —, 842. Consequently, we hold that Mayberry directly controls this case and makes it incumbent upon a different judge to preside at Seale’s contempt hearing on remand.
Jury Trial
In Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, the Supreme Court held that the Sixth Amendment right to trial by jury applies to serious criminal contempts. In the case of criminal contempts, as with other crimes, the relevant criterion of seriousness is the penalty involved. Id. at 198, 211, 88 S.Ct. at 1487; Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 16 L.Ed.2d 629. Ordinarily the statutorily authorized maximum penalty is determinative (Baldwin v. New York, 399 U.S. 66, 72-74, 90 S.Ct. 1886, 26 L.Ed.2d 437), but since Congress has not expressed a judgment as to the seriousness of a criminal contempt by prescribing a maximum sanction in 18 U.S.C. § 401, we are to look to the penalty actually imposed. Frank v. United States, 395 U.S. 147, 148-150, 89 S.Ct. 1503, 23 L.Ed.2d 162; Bloom v. Illinois, supra, 391 U.S. at 211, 88 S.Ct. 1477; Cheff v. Schnackenberg, supra, 384 U.S. at 380, 86 S.Ct. 1523. If the penalty actually imposed exceeds six months’ imprisonment, the maximum sentence for a “petty offense” under 18 U.S.C. § 1, the contempt is serious, and a jury trial must be afforded. Frank v. United States, supra, 395 U.S. at 151, 89 S.Ct. 1503; see Cheff v. Schnackenberg, 384 U.S. supra at 379-380, 86 S.Ct. 1523.
Under Rule 42(a) of the Federal Rules of Criminal Procedure, Seale was summarily sentenced to three months for each of 16 acts of misbehavior made punishable by 18 U.S.C. § 401(1),9 the sentences to be served consecutively. Seale contends that in assessing the penalty actually imposed in order to determine whether he is entitled to a trial by jury, we must look to the aggregate sentence of four years and not to each three-month sentence separately. The Government generally spurns the aggregation approach in determining entitlement to jury trial and further argues that Seale’s allegedly contemptuous conduct was a series of unrelated, independent outbursts which should not be lumped together.
The issue, one of first impression in the federal courts, is fraught with difficulty, but we resolve it in favor of the appellant.
In Bloom, Mr. Justice White, writing for the Court, emphasized the peculiar susceptibility of the criminal contempt power to abuse in the hands of judges. 391 U.S. at 202-207, 88 S.Ct. 1477. It is for this reason that “despite the important values which the contempt power protects, courts and legislatures have gradually eroded the power of judges to try contempts of their own authority.” 391 U.S. at 207, 88 S.Ct. at 1485. Accordingly, the federal courts have long and consistently articulated the importance of limiting the scope of judges’ authority to punish under the contempt statute in derogation of regular due process procedure. In In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 79, 90 L.Ed. 30, the Supreme Court found “a Congressional intent to safeguard constitutional procedures by limiting courts, as Congress is limited in contempt cases, to ‘the least possible power adequate to the end proposed.’ ” See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231, 5 L.Ed. 242 (legislative contempt); In re McConnell, 370 U.S. 230, 236, 82 S.Ct. 1288, 8 L.Ed.2d 434; United States ex rel. Robson v. Malone, 412 F.2d 848, 850 (7th Cir. 1969). While acknowledging a court’s broad discretion to vindicate its own authority in Gompers v. Buck’s Stove and Range Co., 221 U.S. 418, 451, 31 S.Ct. 492, 502, 55 L.Ed. 797, the Court cautioned:
“But the very amplitude of the power is a warning to use it with discretion, and a command never to exert it where it is not necessary or proper.”
In In re Gitkin, 164 F. 71, 74 (E.D.Pa.1908), the Court noted that
“[t]he power of the courts to punish for contempt has always been looked on in this country with much jealousy, and a very strong disposition shown in all jurisdictions to restrain it. It has been declared to be arbitrary in its nature * * *, and to be an exception to the provisions of the Constitution of the United States and not to be extended in the least degree beyond the limits imposed by statute.”
Similarly, it is because of the power’s amenability to subtle, undetectable misuse that “in contempt cases an even more compelling argument can be made for providing a right to jury trial as a protection against the arbitrary exercise of official power.” Bloom v. Illinois, 391 U.S. 194, 202, 88 S.Ct. 1477, 1482, 20 L.Ed.2d 522.10
If a judge may wait until the termination of a trial to cite a contemnor with numerous specifications of contempt, penalizing each specified instance with a sentence of six months or less and thereby avoid impanelling a jury, the potential for abuse is obvious. Utilizing this procedure, any judge could review the record to single out “discrete” instances of contempt, impose up to six-month consecutive sentences for each instance and thereby imprison the contemnor for a theoretically unlimited term.11 He would, in effect, have the power to decide whether the safeguard of a jury should be interposed wholly apart from the total punishment he metes out.
For example, the 16 specifications in the instant case are similar to those in United States v. Schiffer, 351 F.2d 91, 96-101 (6th Cir. 1965), certiorari denied, 384 U.S. 1003, 86 S.Ct. 1914, 16 L.Ed.2d 1017, where an attorney was cited for contemptuous misconduct during the trial. “The contempt certificate set forth under four headings divided into sixteen parts the acts, statements and conduct of Schiffer during the six and one-half weeks’ trial of the Hoffa case [United States v. Hoffa, 235 F.Supp. 611 (D.C.)] * * *.” Id. at 93. Because the judge felt only one who witnessed the entire trial could fully appreciate the extent of misconduct, he made the entire record a part of the contempt proceeding, as the trial judge did here. The court then sentenced the contemnor to sixty-days’ imprisonment and a fine which was later retracted. The presentation of the facts in Schiffer indicates that the judge dealt with the continual trial misconduct as a unitary offense. In such a case the judge is limited to a six-month sentence unless he wishes to impanel a jury. Yet another judge who looks at the same 16 parts as separate offenses could impose a sentence of 96 months, or eight years, without affording the contemnor a jury trial. This procedure could all too easily be employed to circumvent the holding of Bloom.
It is true, of course, that appellate courts could review the trial court’s determination of discreteness. Cf. Yates v. United States, 355 U.S. 66, 72-74, 78 S.Ct. 128, 2 L.Ed.2d 95. (refusal of witness to answer 11 similar questions). The difficulty is, however, that the standards of such a review will be amorphous, and the result will be inconsistency of decision. There is hardly anything inevitable about whether disruptive activity occurring during the course of a single trial is viewed as a continuous course of conduct or as a series of isolated instances, and we are at a loss to devise a satisfactory test with which to make that judgment.12
More important, appellate review of this determination does not afford the same measure of protection against arbitrariness as does a requirement that the total sentence imposed controls the right to a jury trial.
Even if the potential for abuse in the trial judge’s post-trial “discreteness” determination is put to one side, there would still be too much opportunity facilely to circumvent Bloom. If in addition to several borderline instances of contempt, the contemnor were to engage in what the trial judge thought to be an outrageously contumacious act—one which standing alone would deserve punishment greatly in excess of six months—he could, by using the procedure employed below, “spread out” the just desserts for the egregious offense over the others, with the result that a serious offense would be severely punished without a jury trial. Indeed, in the instant case, the uniform three-month sentence for each specified act of contempt could leave the impression that no special attempt was made to make the penalty proportionate to the offense for which it was imposed.
Again the argument is made that appellate courts have the power to revise contempt sentences.13 Certainly appellate courts may reduce such excessive sentences, but they would hardly increase too lenient ones. Thus in the above example, reducing the sentences on overpenalized minor contempts would only serve to allow a grave offense to go underpunished. Furthermore, because a reviewing court “cannot have the same appreciation of an existing situation, from a review of a cold record, as does a presiding judge who witnesses the transgressions and senses the unfavorable impact upon the orderly administration of justice.”14 great reliance must be placed upon the discretion of the trial judge in meting out punishment.15 In this posture appellate review cannot ensure as satisfactory a protection against the possibility of abuse illustrated above as measuring the right to jury trial by the cumulative sentence imposed for contempts occurring during a single trial.
Nevertheless, while the scope of the trial judge’s authority under the contempt statute is to be strictly limited, it still must be adequate to the end proposed. Thus there is force in the Government’s contention that if the right to a jury trial is based on the cumulative sentence imposed, a citation for contempt and imposition of a six-month sentence therefor early in the trial would exhaust the judge’s summary contempt power and remove further exercise of that power from his arsenal of weapons with which to handle obstreperous defendants.16 See Freund, Contempt at Court, 1 Human Rights 4, 6 (ABA Section of Individual Rights and Responsibilities, 1970). On the other hand, where contemptuous conduct is cited and punished immediately upon its occurrence, the potential for abuse inherent in the post-trial proceedings is not so great. Consequently, where contemptuous conduct is cited and punished instantly, we think the punishment assessed for that conduct may be considered separately in determining the right to a jury trial. See Dobbs, Contempt of Court: A survey, 56 Cornell L.Rev. 183, 234 (1971).
Where, as here, the trial judge waits until a mistrial or the conclusion of court proceedings to cite for contempt, the argument stemming from the need to retain summary power to deal with future disruptions loses its force. It is contended that the appellant should not receive a jury trial because of the fortuity that all his contemptuous actions were cited in a single proceeding after his trial was over. However, the decision to save up the contempt specifications until the end of trial was deliberate, not fortuitous. Regardless, it is settled that a later citation for contempt may require more in the way of procedural protection than would have been necessary for instant action. Groppi v. Leslie, 404 U.S. 496, 504-506, 92 S.Ct. 582, 30 L.Ed.2d 632; Mayberry v. Pennsylvania, 400 U.S. 455, 463, 91 S.Ct. 499, 27 L.Ed.2d 532; Johnson v. Mississippi, 403 U.S. 212, 214, 91 S.Ct. 1778, 29 L.Ed.2d 423; In re Oliver, 333 U.S. 257, 274-275, 68 S.Ct. 499, 92 L.Ed. 682; Ex parte Terry, 128 U.S. 289, 308, 310, 9 S.Ct. 77, 32 L.Ed. 405; United States v. Meyer, 149 U.S.App.D.C. —, 462 F.2d 827 (1972).
We have identified the potential for abuse in the technique used below. But the Government has not shown that the protection afforded by an aggregation rule for determining the right to jury trial will debilitate the trial judge in the proper exercise of the contempt power. We perceive no sound rationale why requiring aggregation of contempt sentences in the post-trial situation would diminish the summary contempt power to a point where it is inadequate to the end proposed.
A jury trial of Seale’s specifications will not diminish a court’s power to punish for contempt but will merely pass the question of guilt to a jury. If the charges are supported by the evidence, a jury should not be detrimental to the court’s power to vindicate its authority, since the jury will understand that a court cannot function without order and will review the facts and arguments accordingly. If the judge has been arbitrary, “identif[ied] offense to self with obstruction to law,”17 or has mistaken advocacy for misbehavior, tolerable inconvenience with obstruction, a jury can intervene. This function of harmonizing the power of the court with the public’s view of how much judicial power it will tolerate creates an equilibrium that helps maintain the viability of the court as an institution. Whether or not the system is entirely successful, Bloom has already made “the choice in favor of jury trial” 391 U.S. at 209, 88 S.Ct. at 1486, 20 L.Ed.2d 522.
The aggregation rule comports with the Supreme Court’s insistence that the summary contempt power must be limited to “the least possible power adequate to the end proposed” (326 U.S. at 227, 66 S.Ct. at 79, 90 L.Ed. 30) and best effectuates the Court’s ruling in Bloom that serious punishment for contempt may be imposed only after jury trial. We hold that where the judge waits to act until a mistrial or the end of a trial, consecutively imposed sentences for contemptuous conduct occurring during the course of the preceding trial must be cumulated to determine the defendant-contemnor’s right to a jury trial.18 Although we conclude that these contempts must be aggregated in order to provide “a right to jury trial as a protection against the arbitrary exercise of official power” (391 U.S. at 202, 88 S.Ct. at 1482), the petit jury will still be free to pass on each of the legally sufficient specifications in determining Seale’s guilt.19
If the judge to whom this case is referred for trial decides that the outside limit of a sentence for Seale should be six months maximum including cumulation, that would obviate the necessity of having a jury on the remand.
Necessity to Inquire of Seale Why He Objected to Counsel
During argument on the August 27, 1969, motion for a continuance, defense counsel Weinglass advised the district judge that Seale was represented only by Mr. Garry. Responding to the prosecutor’s argument that Messrs. Tigar, Birnbaum, and Bass were also counsel for Seale, Weinglass stated that Birnbaum and Bass were merely local counsel and were never intended as trial counsel, and Tigar was only engaged as a specialist to argue defense motions on wiretapping. Mr. Birnbaum, speaking for himself and Mr. Bass, corroborated Weinglass’ assertion that they were acting only as local counsel in accordance with the court rule requiring local counsel.20
The trial court simply stated it was of “the opinion that either Mr. Bass or Mr. Birnbaum could represent any one of their clients and do a good professional job” and so found. No inquiry was addressed to the desires of Seale, who was then incarcerated in California; the court relied exclusively on the appearances filed by Bass and Birnbaum in Seale’s behalf.
At the September 9, 1969, hearing on the renewed motion for a continuance based on Garry’s impending operation, the trial court found that although normally the inability of retained counsel to serve would entail allowing his client to secure other counsel, that was unnecessary since other counsel were of record. Again the court noted that attorneys Birnbaum, Bass and Tigar had entered appearances for Seale. The court dismissed Garry’s assertion that these attorneys had been engaged exclusively for pretrial work with the statement that they had entered general appearances, for there was no such thing as a limited appearance in a criminal case. Again the court did not advert to Seale’s desires. Garry then told the court that Seale would be without counsel at the time he was brought to Chicago for trial from his San Francisco incarceration.
On September 24, when the trial commenced, Mr. Kunstler entered an appearance for Seale and defendants Hoffman, Froines, and Weiner. At the same time, Kunstler told the court that all defendants took the position that they were not fully represented because of Garry’s absence. He asked that all defendants be allowed to speak to that point, but the court refused. Weinglass then stated that Seale did not have counsel but the court silenced him with the response, “That is not a fact, as it appears from the record.” Thereafter the court told the jury that Seale was represented by Messrs. Kunstler, Garry, Tigar, Birnbaum, and Bass.21
Two days later, after the jury was impanelled but prior to the opening statements, Seale presented pro se his hand-written motion requesting postponement until Garry could be present to represent him. The motion, which was denied, also dismissed all counsel of record except Garry. Later that morning, Seale attempted pro se to make an opening statement and reiterated that his lawyer was Garry. Upon being interrogated by the court, Mr. Kunstler replied that he did not represent Seale, but the court concluded otherwise because Kunstler had filed an appearance in Seale’s behalf, although Kunstler explained that his appearance for Seale had been limited to giving him access from jail to the outside world.
Thereafter the trial judge consistently adhered to his view that Kunstler’s appearance was conclusive on the question of his representation of Seale. When on October 20 Seale presented a formal motion to proceed pro se, the trial court denied it on the grounds that Seale’s self-representation would produce a “disruptive effect,” would be inappropriate in view of the complexity of the case, and would be more prejudicial to his defense than a denial of the motion. To this position the trial judge likewise consistently adhered.
We note the trial judge’s earlier reliance on the appearances of attorneys Tigar, Birnbaum, and Bass in view of his felt need to begin the trial on schedule and the difficulty of immediately confronting the absent Seale. Moreover, we sympathize with his later dependence on Kunstler’s appearance in view of Kunstler’s previous statement that the defendants had agreed to be represented by a trial team consisting of himself and attorneys Garry and Weinglass and in view of the progressing time. However, nothing in the appearance rule negates a limited appearance. (See note 1, supra.) Even if limited appearances were precluded, the trial judge would be justified in relying on the appearance rule only to control the relationship between the court and counsel or between counsel and clients desirous of their representation. He would not be justified in using any such rule to determine summarily the attorney-client relationship at least where, as here, there was protestation that the appearances did not in fact reflect the true consensual relationship between the defendant and the attorneys of record for him. Certainly Seale could not be bound by the appearances of counsel engaged only for pretrial work when, perhaps, their specialized employ was only the delegation of chosen trial counsel. Neither could Seale be bound by Kunstler’s action in filing an unauthorized appearance. In sum, the right to counsel of choice could not be denied by exclusive recourse to appearances on record where Seale did not actually agree to the trial representation of the appearing attorneys or where he was not shown to be engaging in unwarranted dilatory tactics.
The Government argues that the grant of a continuance is a matter left solely to the sound discretion of the trial judge.22 The denial of a continuance below is said to have been proper, inter alia, in view of the fact that Seale had other counsel of record. The point is, however, that the trial judge was confronted from the very beginning with objections that these attorneys of record were not in fact counsel chosen by the defendant to represent him at trial.
The Government has cited no authority to show that a trial judge may eschew inquiry into the objections of a defendant who unexpectedly finds himself without chosen trial counsel.23 If the Sixth Amendment right to the effective assistance of counsel means anything, it certainly means that it is the actual choice of the defendant which deserves consideration. This is not to say that Seale was unequivocally entitled to a continuance until Garry could be present. But if an inquiry disclosed that this defendant had never consented to be represented at trial by the other record attorneys in Garry’s absence, was unwilling to proceed with any counsel except Garry and was sincere in his position, other alternatives were available to the trial court. The grant of severance and a reasonable continuance to secure substitute counsel or leave to Seale to represent himself would have permitted the trial to continue promptly and may well have obviated many of the difficulties that later occurred.
The Government argues that the trial court was not obligated to inquire of Seale whether he desired to represent himself until he unequivocally asked to proceed pro se and points to the fact that Seale did not formally file a motion to act in his own defense until October 20,24 the seventeenth day of trial. By that time, the Government contends the trial was well under way, and accordingly Seale’s right to proceed pro se was strictly limited, exercisable only in the trial court’s sound discretion.25
We agree with then Circuit Judge Burger, concurring in Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363, 368 (D.C.Cir.) (en banc), certiorari denied, 360 U.S. 911, 79 S.Ct. 1299, 3 L.Ed.2d 1262 (1958), that “[t]he issue here is not whether an accused has a right to try his own case in proper person; nor is the issue whether an accused must in all circumstances be informed explicitly by the court that he had a right to proceed as his own counsel. The heart of the matter is the scope of discretion of the trial court when an objection to counsel is made known.” Here the trial court was put on notice when hearing the continuance motions on August 27 and September 9, and when conducting the pretrial proceedings on September 24, that Seale was dissatisfied with any counsel except Garry. Moreover, on September 26, at the earliest opportunity after the impanelling of the jury,26 Seale’s pro se motion advised the court that he had relieved all other counsel of record for him in Garry’s absence. Soon thereafter he attempted pro se to make an opening statement to the jury, thus reiterating his non-acceptance of these attorneys of record. Since Seale had amply indicated dissatisfaction with counsel, the trial court was under a duty to inquire into the subject. As then Circuit Judge Burger explained in his concurring opinion in Brown v. United States, supra at 369, the entire court there agreed on the following proposition which he espoused:
“[W]hen, for the first time, an accused makes known to the court in some way that he has a complaint about his counsel, the court must rule on the matter. If the reasons are made known to the court, the court may rule without more. If no reasons are stated, the court then has a duty to inquire into the basis for the client’s objection to counsel and should withhold a ruling until reasons are made known.”
See United States v. Mitchell, 138 F.2d 831 (2d Cir. 1943), certiorari denied, 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 1083 (1944); United States v. Birrell, 286 F.Supp. 885 (S.D.N.Y.1968). We are in accord. Since the trial judge was bound to look into the basis of Seale’s dissatisfaction with his lawyers of record apart from the hospitalized Mr. Garry, failure to do so was an abuse of discretion.
It is immaterial whether Seale had a right to a continuance until Mr. Garry could represent him or had a right to appear pro se. What is crucial is that in the circumstances of this case, the trial judge had a duty to inquire of Seale as early as August 27 and no later than September 2627 as to his objections to counsel of record and to take appropriate action to make sure that his Sixth Amendment right to the assistance of counsel and his right to represent himself were appropriately honored.28
As shown in a November 4 colloquy between the trial court and Seale, if there had been an inquiry of Seale about the authorization of Kunstler’s appearance, Seale apparently would have told the court that he never had a pretrial conference with Kunstler (but see note 2 supra), that Garry was the only lawyer to whom he talked regarding his case, that he was never asked regarding Kunstler’s filing of an appearance, and that Kunstler had appeared on his own accord without any request by or consultation with Seale. Judging from Seale’s September 26 motion and his attempt to make an opening statement in his own behalf as well as from his subsequent demands for and attempts at self-representation, it is only realistic to assume that during the requisite inquiry Seale would have expressly voiced his desire to proceed pro se in the event a continuance was disallowed. We note only that if the above facts regarding Kunstler’s attorneyship were found true and Seale was found to be free of ulterior motivation, it would have been error for the trial court to force Kunstler’s services upon Seale over his insistence on defending himself.
The Government relies on this Court’s opinion in United States v. Cozzi, 354 F.2d 637 (1965), certiorari denied, 383 U.S. 911, 86 S.Ct. 896, 15 L.Ed.2d 666. When that cause was called for trial, John Cogan, attorney for Cozzi, explained that because of a prosecution subpoena served on Anthony Butera, Jr., whom he had also represented, there appeared to be a conflict of interest. However, the prosecutor assured the court Butera would not be called as a witness, so that the court quite properly refused to allow Cogan to withdraw as Cozzi’s counsel. There the defendant was not complaining that any counsel was being imposed upon him instead of counsel of choice. As we said,
“Cozzi does not question the competency of Cogan, counsel of his own selection, nor the quality of Cogan’s representation. There is no suggestion that Cogan’s original undertaking to represent both Cozzi and Butera [who had previously been convicted upon a guilty plea] involved any conflict of interest—or possible prejudice to either defendant.” 354 F.2d at 639.
Cozzi was a case where a single reason—conflict of interest—was inquired into, assessed and correctly found insufficient to warrant substitution of counsel. Since Cozzi’s position was simply an adoption of Cogan’s conflict of interest objection, we of course held that the trial court did not err in declining personally to interrogate the defendant concerning Cogan’s request for substitution.
Cozzi is not inconsistent with our present holding that in this case it was error not to interrogate Seale about his objection to counsel other than Garry.29
Trial Court’s Adverse Rulings Did Not Justify Seale’s Contemptuous Conduct
From the foregoing it is clear that the trial court erred in failing to inquire into the basis for Seale’s dissatisfaction with his counsel of record other than Garry. However, because such an inquiry might have found the facts to be at odds with Seale’s allegations or conceivably have yielded a justifiable conclusion on the part of the trial judge that Seale was manipulating his constitutional right to counsel or right to represent himself in order to delay and disrupt the proceedings,30 we cannot say from our vantage point that Seale had unequivocal rights to be represented by Garry or to represent himself and that these rights were denied. Assuming these rights were wrongfully denied, it is clear that such error, and certainly the one the trial judge did commit, would not justify contumacious conduct.
It is well settled that the invalidity of a court order is not generally a defense in a criminal contempt proceeding alleging its disobedience. Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210; United States v. United Mine Workers, 330 U.S. 258, 293-294, 67 S.Ct. 677, 91 L.Ed. 884; Howat v. Kansas, 258 U.S. 181, 189-190, 42 S.Ct. 277, 66 L.Ed. 550; United States v. Bukowski, 435 F.2d 1094, 1108 (7th Cir. 1970), certiorari denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809; United States v. Hammond, 419 F.2d 166, 168 (4th Cir. 1969); United States v. Tijerina, 412 F.2d 661, 666 (10th Cir.), certiorari denied, 396 U.S. 990, 90 S.Ct. 478, 24 L.Ed.2d 452 (1969). Of course this principle applies to defeat any contention that obstructive and disruptive courtroom conduct is excused because it protests an erroneous ruling. Perhaps the most recent pronouncement to that effect is in Illinois v. Allen, 397 U.S. 337, 346-347, 90 S.Ct. 1057, 1062, 25 L.Ed.2d 353, where Mr. Justice Black, in delivering the opinion of the Court, observed that courts are bound to make some errors but errors do not justify a defendant’s infection of courtroom proceedings “with the sort of scurrilous, abusive language and conduct paraded before the Illinois trial judge in this case.” There Allen was insisting on his Sixth Amendment rights, just as Seale was. Therefore, it is clear that even an error respecting such fundamental constitutional rights does not excuse contumacious conduct inspired thereby. See Walker v. City of Birmingham, supra (both the injunction and ordinance upon which it was based were “unquestionably” constitutionally suspect).
Similarly, in United States v. Sacher, 182 F.2d 416, 430 (2d Cir. 1950), affirmed, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717, involving contemptuous conduct of attorneys during a celebrated Smith Act trial,31 a distinguished panel of the Second Circuit was faced with the contention that grievous errors committed by the trial judge32 provoked their reactions and thus vitiated the contempt citations imposed therefor. Speaking for the Court, Judge Augustus Hand pointed out that irrespective of whether error was committed or not, the defendants had no license to obstruct the trial. “Their only remedy is by an appeal.” (See also the concurring opinion of Judge Frank, 182 F.2d at 454.)
Though he was speaking more of the trial judge’s demeanor, Judge Wilkin’s ruling in United States v. Offutt, 145 F.Supp. 111, 114-115 (D.D.C.1956), modified, 247 F.2d 88 (D.C.Cir.), certiorari denied, 355 U.S. 856, 78 S.Ct. 85, 2 L.Ed.2d 64 (1957), is equally apposite to this case where the claims are made that the trial judge’s rulings manifested his hostility towards Seale’s contentions and that the judge attempted to coerce a waiver of Seale’s Sixth Amendment rights. In language peculiarly appropriate here, the Judge said:
“It is the finding and judgment of this Court that the conduct of the trial judge did not justify or excuse the challenged conduct of trial counsel. It is the opinion of this Court that improper conduct of a trial judge can never justify or excuse contemptuous conduct of a trial attorney.”
“Two wrongs do not make a right, and misconduct cannot obliterate other misconduct. It is the duty of all participants in a trial to maintain the dignity and good order of the courtroom.”
“Judicial impropriety cannot be considered a complete defense, but only an extenuating circumstance.”
See Sacher v. United States, 343 U.S. 1, 39, 72 S.Ct. 451, 469, 96 L.Ed. 717 (Frankfurter, J., dissenting): “Counsel are not freed from responsibility for conduct appropriate to their functions no matter what the encouragements and provocations. Petitioners must be held to strict accountability for the contempts they committed.” See also Flaum & Thompson, The Case of the Disruptive Defendant: Illinois v. Allen, 61 J.Crim.L.C. & P.S. 327, 337-338 (1970); Freund, Contempt of Court, 1 Human Rights 4, 8-9 (ABA Section of Individual Rights and Responsibilities 1970).
The reason that the rulings of a trial judge, no matter how sincerely felt to be or in fact indefensible, cannot excuse contumacious protestation is that “[i]t is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country.” Illinois v. Allen, supra, 397 U.S. at 343, 90 S.Ct. at 1061. “Preservation of the liberties of citizens, when on trial for crimes charged against them, demands order in the courtroom. Absent such order, no trial can be fair. More important, if criminal trials cannot go on in orderly fashion, then the defendants, if unpopular or if members of minority groups, may become the victims of that monstrous substitute for trials—mob violence.” United States v. Sacher, supra, 182 F.2d at 454 (concurring opinion of Judge Frank). It is precisely because appellate courts sit to vindicate error that this principle is viable. Thus it is that he who would make himself the “judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion,” (Walker v. City of Birmingham, supra, 388 U.S. at 320-321, 87 S.Ct. at 1832), and who would resort to appeal by disruption in the courtroom commits “the most grievous of offenses—a crime against intelligence.” Freund, supra at 9.
Seale contends, however, that he was unaware his claims were preserved for appellate review,33 and that his conduct is explicable by his desire to make a record. He relies on In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434, for the proposition that this motivation exonerates him as a matter of law. But McConnell does not stand for the proposition that a good faith reasonable belief in the necessity to preserve a point for review justifies any conduct inspired thereby. In that case an attorney, prompted by the reasonable belief that it was necessary for him to ask questions before making an offer of proof to support review of the trial judge’s ruling, was confronted with the court’s order to desist from questioning before making the offer of proof. In response, he asserted his right to continue questioning and “propose[d] to do so unless some bailiff stops us.” The Supreme Court’s holding was very narrow: “[a] mere statement by a lawyer of his intention to press his legal contention until the court has a bailiff stop him * * * ” does not amount to an obstruction of the administration of justice punishable as contempt under 18 U.S.C. § 401(1). 370 U.S. at 236, 82 S.Ct. at 1292. The Court was careful to emphasize that the petitioner never disobeyed the judge’s order by continuing the questioning along the line which the judge had forbidden. 370 U.S. at 235, 236, 82 S.Ct. 1288.
Whether Seale entertained a good faith reasonable belief in the necessity to continue his protestations in order to preserve his claims for review or to avoid being charged with waiver is a question which may be explored by the new judge on remand. However, open defiance of the trial court’s directives to desist or disruptive persistence beyond all bounds of propriety would not be justified merely because Seale may have entertained the belief that some protest was called for. Where there is such defiance or obstructive excess of persistence, belief in the necessity to register objections for the record may reduce the degree of culpability but does not exonerate.34
Finally, Seale claims that the trial court’s “erroneous” rulings forced him to fend for himself, and as a layman he was ignorant of how to make his objections without committing contempt in the court’s eyes. In this way, he argues, the “erroneous” rulings justified any otherwise contumacious behavior. This claim must be taken as essentially indistinguishable from Seale’s further claim that his conduct cannot be found contemptuous as a matter of law because inadequate warnings as to what conduct was impermissible violated due process. This contention will be discussed infra. However, the notion that the trial court’s erroneous binding of Seale to Kunstler’s representation necessarily left him ignorant of how to conduct himself contains a patent nonsequitur. While the trial court’s holding of Kunstler to his appearance may not have obligated Kunstler to represent Seale affirmatively against Seale’s wishes, we cannot say it relieved Kunstler of his ethical obligation to advise him as to what was improper courtroom deportment.35 As then Circuit Judge Burger has pointed out, we should not assume that a member of the bar has breached professional ethics.36 In any event, whether Seale was not advised is a factual question bearing on the larger factual question of his reasonable awareness that his behavior violated minimal standards of courtroom propriety.
Electronics Surveillance
On April 17, 1970, two months after completion of the Anti-riot Act trial of David Dellinger, et al., the Government moved to supplement the record with some sealed surveillance logs relating to Seale’s contempt conviction. Because the Seale contempt case was already pending on appeal, the motion was denied by the trial judge. Subsequently we granted the Government’s motion for a limited remand so that the district court could consider the surveillance data.
On August 7, 1970, the district judge filed a memorandum of decision denying the Government leave to supplement the record on appeal on two grounds. The first ground was that Seale had no standing to object to the electronic surveillance because the Court’s in camera examination of the sealed exhibit revealed that it “contains no record of any surveillance of either the persons or the premises of the defendant, Bobby G. Seale, his attorneys, the other seven (7) defendants in the case of United States v. David T. Dellinger et al., or of any attorney who appeared as counsel for those defendants.” The second ground was that there was no possible taint issue since the contempt conviction was based solely on what the court certified that it saw or heard in its actual presence. Rule 42(a) of the Federal Rules of Criminal Procedure.
We too have examined the logs of the four monitored conversations. Under the Fourth Amendment, Seale has no standing to object to these logs, because they were not overhearings of his conversations nor did they occur on his premises. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; United States v. Mirro, 435 F.2d 839 (7th Cir. 1970). However, the first paragraph of the earliest of the three logs is open to the construction that the overheard conversation was a link in a communication from a lawyer to Seale advising him with respect to his conduct in court. Eavesdropping on a relay between two intermediaries37 constitutes a sufficiently “direct intrusion * * * into attorney-client discussions” (Hoffa v. United States, 387 U.S. 231, 233, 87 S.Ct. 1583, 1584, 18 L.Ed.2d 738) to give Seale standing to complain that his Sixth Amendment right to the assistance of counsel may have been disturbed. Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26; O’Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94; see Hoffa v. United States, 385 U.S. 293, 308, 87 S.Ct. 408, 17 L.Ed.2d 374. Apart from this paragraph, the remainder of these logs does not reveal any possible impairment of the attorney-client relationship, so that Seale lacks standing with respect to them, as the district court held.
The logs in question were gathered by the Federal Bureau of Investigation after the Attorney General ruled that it was necessary to the national security to obtain them. Accordingly, these surveillances were arguably legalized by Section 802(3) of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2511(3)).38 The Attorney General’s action was within the contemplation of the statute. However, the Sixth Circuit has recently held that this provision does not contain a grant of power and that as to domestic security, the Fourth Amendment proscribes electronic surveillances of this nature without judicial authorization. United States v. United States District Court for E. D. of Mich., 444 F.2d 651, certiorari granted, 403 U.S. 930, 91 S.Ct. 2255, 29 L.Ed.2d 708 (1971). On the other hand, if the Supreme Court rules to the contrary, these national security logs were properly withheld by the district court and no part of them need be disclosed barring a showing on remand that the Sixth Amendment would require a different result.39
Assuming that the holding of United States v. United States District Court for E. D. of Mich. is affirmed or still stands at the time of retrial of Seale’s contempt, the question then arises whether Seale is entitled to a taint hearing under Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176. The Government argues that there was no taint because the Government’s trial attorneys and the district court did not know of the existence of these logs and their contents. But in United States v. Fannon, 435 F.2d 364 (7th Cir. 1970), we held that unsworn answers of the prosecutor were insufficient to show lack of standing. Consistently with the Fannon case, sworn testimony, subject to cross-examination, of relevant Government witnesses must be submitted on remand to show lack of taint. See United States v. Fox, 455 F.2d 131, 132 (5th Cir. 1972). Furthermore, if the overheard message reached Seale, it might at his option be used on remand to show his state of mind and motivation at the time of the conduct, even though it had not influenced the decision of the trial judge and was not known to the prosecutorial staff.40
In sum, under the Sixth Amendment, Seale presently has standing to entitle him to inspect the first paragraph of the October 8, 1969 log, subject to appropriate protective provisions to be imposed below before the taint hearing. If the Government is unwilling to permit such inspection, then the contempt proceedings against Seale must be dropped. Alderman v. United States, 394 U.S. 165, 181, 89 S.Ct. 961, 22 L.Ed.2d 176.
Legally Insufficient Specifications Against Seale
Having determined that this case must be remanded for trial before a jury and another judge, we are called upon to ascertain which of the trial judge’s specifications are insufficient as a matter of law to support a conviction. As a concomitant of that task, we will attempt to formulate both the issues which the jury will consider and the standards within which it must resolve them. First, however, we must deal with appellant’s contention that the trial judge inadequately warned him that his conduct was considered contemptuous and that in consequence he is completely immune from a contempt conviction.
Under the intent standard which we will shortly enunciate, a defendant will be protected against the possible unfair surprise of being cited for contempt for conduct that could not be reasonably believed improper when committed. Accordingly, an absence of any warning that borderline conduct is regarded as contumacious could be fatal to a contempt citation therefor. See United States v. Schiffer, 351 F.2d 91, 95 (6th Cir. 1965), certiorari denied, 384 U.S. 1003, 86 S.Ct. 1914, 16 L.Ed.2d 1017. However, we have here a factual question and could not rule as a matter of law that Seale must be deemed ignorant of the character of his conduct in the absence of prior warning. Moreover, this is not a record devoid of any warning by the trial judge. In fact, quite the contrary appears, for the record is replete with admonitions.
Contrary to appellant’s contention, he need not specifically have been warned nor indeed be aware that his conduct could be visited with a criminal penalty as opposed to another type of sanction. See United States ex rel. Shell Oil Co. v. Barco Corp., 430 F.2d 998, 1001 (8th Cir. 1970). Likewise, we reject appellant’s contention that the imposition of physical restraints on him late in his aborted trial could have relieved him of any reasonable expectation of any further penalty for his conduct, either prior or subsequent to his binding and gagging. Suffice it to say that his reliance on Yates v. United States, 227 F.2d 848 (9th Cir. 1955), and Daschbach v. United States, 254 F.2d 687 (9th Cir. 1958), in this regard is completely misplaced due to the entirely different situations portrayed in those cases. Finally, the contention that the manner and timing of the warnings given created confusion as to what conduct was permissible is one to be made before the trier of fact on remand.
Four elements are required in order to support a contempt conviction under Section 401(1).41 First, the conduct at issue must constitute “misbehavior.” We would define it as conduct inappropriate to the particular role of the actor, be he judge, juror, party, witness, counsel or spectator.42 Generally these roles have been molded to insure that a judicial proceeding is orderly, dignified, and confined to a rational search for truth in the context of defined legal issues. “There must be silence, except as the orderly conduct of business calls for speech.” United States ex rel. Robson v. Malone, 412 F.2d 848, 850 (7th Cir. 1969). And when speech is thus called for, the speaker may use only his allotted time and fill it with relevance and moderation. See Sacher v. United States, 343 U.S. 1, 9, 72 S.Ct. 451, 96 L.Ed. 717. The particular standards of demeanor for each participant in a court of law or in connection with judicial proceedings have become solidified in tradition and do not need elaboration here. We leave their articulation to the judge presiding on remand and their application to the conduct in question to the trier of fact. We note only that the standards of proper courtroom decorum are not altered and should not be applied differently because a trial may be characterized as political or because improprieties may be said to spring forth as if a “natural human response.” Were it not for the misconceptions apparent in this case, we would have thought this too obvious to mention.
The statute secondly requires the misbehavior to rise to the level of an “obstruct[ion of] the administration of justice.” We will deal with this element of the offense shortly, but note now that its presence is clearly required in order that misbehavior be punishable as contempt. In re McConnell, 370 U.S. 230, 234, 82 S.Ct. 1288, 8 L.Ed.2d 434.
Third, it is evident from a reading of the statute that the conduct in question must be in the court’s presence or so proximate that it obstructs the administration of justice. Since the conduct in issue here took place in the court’s presence, this requirement needs no further elaboration.
Fourth, virtually every decision under this Section has required some form of intent to obstruct. It is this requirement together with that of obstruction which concerns us here.
Taking the element of intent first, it should be observed initially that this requirement has received a variety of treatment by different courts. For example, while numerous courts, including this Court, have apparently required a specific finding of wrongful intent (e. g., In re Brown, 454 F.2d 999, 1003, 1007 (D.C.Cir.1971); United States v. Jackson, 426 F.2d 305, 309 (5th Cir. 1970); United States v. Sopher, 347 F.2d 415, 418 (7th Cir. 1965)), a standard urged by appellant Seale, the Government has vigorously argued that the lesser requirement enunciated in Offutt v. United States, 232 F.2d 69 (D.C.Cir.), certiorari denied, 351 U.S. 988, 76 S.Ct. 1049, 100 L.Ed. 786 (1956), be applied. In Offutt, the court established a two-part test for the intent requirement. This was done by distinguishing between contempts involving “clearly blameworthy” conduct and those involving other less serious conduct. Where “clearly blameworthy” conduct is present the court held that “a finding of contumacious intent is not always a prerequisite to a contempt conviction under 18 U.S.C. § 401(1).” On the other hand, where “clearly blameworthy” conduct is absent, “there is no contempt unless there is some sort of wrongful intent.” Offutt, supra, at 72.
Apparently the Offutt court accepted the general proposition that a finding of specific intent is required for a contempt conviction, but believed that certain conduct which could be designated “clearly blameworthy” carried with it some form of self-evident intent which negated the need for a specific finding.43 The Offutt dichotomy creates problems in the area of determining what conduct is “clearly blameworthy” (or “patently contemptuous” as the Government has defined it) by removing the requirement of a finding of specific intent in some such cases. We are persuaded that the better position is strictly to require a finding of intent in every case.44 See Morissette v. United States, 342 U.S. 246, 274-276, 72 S.Ct. 240, 96 L.Ed. 288. And, as was emphasized recently in In re Brown, 454 F.2d 999, 1007 (D.C.Cir. 1971), “proof beyond a reasonable doubt that the alleged contemnor possessed the required intent must forerun a criminal contempt conviction.” See also United States ex rel. Porter v. Kroger Grocery and Baking Co., 163 F.2d 168 (7th Cir. 1947).
The requirement of proof of intent is, however, the beginning, not the end, of the inquiry, for the manner in which the requisite intent is defined is equally important. On this question, we also find a disparity of treatment. The poles of the intent issue are rather easily defined; at one extreme is the theory that all that is required is a willful or volitional act without regard to the known or intended consequences of the act, and at the other is the requirement that the contemnor actually intended his act to obstruct the judicial process. The appellant contends that the requisite intent is limited to the latter situation. He would define it as a “vicious will” or a “culpable intent to obstruct justice” and argues that any less stringent standard would have an “extraordinary chilling effect on a vigorous defense.” See Caldwell v. United States, 28 F.2d 684 (9th Cir. 1928). In support of this position, great emphasis is placed upon the decision of this Court in United States v. Sopher, 347 F.2d 415, 418 (7th Cir. 1965), in which it was noted that “positive evidence of a deliberate intent to pursue a course of improper argument or prohibited conduct” was absent. Appellant would construe this language to require the presence of intent as he has defined it, but the language does not require such interpretation and the holding of the case was that no actual obstruction had been shown. 347 F.2d at 418.
The Government responds to this position with the argument that the contemnor need not know that his actions are contumacious. It contends that it is sufficient that he “know what he is doing so that his misconduct does not occur by accident, inadvertence or other innocent reason.” See United States v. Polizzi, 323 F.Supp. 222, 226 (C.D.Cal.1971). To us, neither formulation offers a viable standard. The minimum requisite intent is better defined as a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful. See United States v. Cullen, 454 F.2d 386, 392 (7th Cir. 1971); cf. In re Brown, supra, 454 F.2d at 1007, 1009, and Sykes v. United States, 144 U.S.App.D.C. 53, 444 F.2d 928, 930 (1971). Of course, an actual design to subvert the administration of justice is a more grievous and perhaps more culpable state of mind, but proof of such an evil motive is unnecessary to establish the required intent. United States v. Cullen, supra. Certainly the most obvious source from which this intent can be ascertained is the trial transcript. United States v. McCarthy, 196 F.2d 616, 619 (7th Cir. 1952); United States ex rel. Porter v. Kroger Grocery and Baking Co., supra. Indeed, some conduct depicted therein will itself carry sufficient indicia of intent to satisfy the Government’s burden of proof on this issue. However, as noted elsewhere in this opinion, the hearing on remand need not be confined to the record.
An equally pervasive issue on remand is the determination of whether the specified conduct, which may be found to be misbehavior, rose to the level of an obstruction of the judicial process within the meaning of Section 401(1) (note 9 supra). Obstruction is an elusive concept which does not lend itself to general statements. The tendency has been for courts to treat each case on its individual facts and there are, therefore, few decisions which aid in the determination of the proper standards for the jury in this case. Appellant asks that a standard of “material and substantial” be applied. The Government would have “any interruption” made punishable when it “diverts the judge’s attention from the orderly dispatch of the trial.” Notably, neither standard finds unequivocal support in authority.
The Supreme Court has touched upon the issue in very general terms, teaching us in In re McConnell, 370 U.S. 230, 236, 82 S.Ct. 1288, 8 L.Ed.2d 434, that the conduct must amount to an “actual obstruction of justice”; in In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 90 L.Ed. 30, that it must effect the “immediate interruption” of the court’s business; and in Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 63 L.Ed. 656, that the obstruction must be “clearly shown.” Beyond this, courts have assiduously avoided enunciating a standard. In the context of the instant case, however, where the proceedings are being remanded for trial by jury, something more is needed. We find, therefore, that the standard to be applied is one of material disruption or obstruction. Clearly, the Government’s proposed “any interruption” standard is too encompassing, for trials are by nature adversary and contentious, and few proceed without some form of interruption. The power of contempt was not fashioned to stifle the search for truth through adversary proceedings; rather it was designed to preserve it by punishing actual, material obstruction of these proceedings. However, we realize that the seriousness of the misbehavior bears on what conduct may be found materially obstructive.
While it is difficult to enunciate general rules defining obstruction, it is easier to state in the negative what type of conduct does not rise to the level of obstruction. For example, it has frequently been held, and considerable scholarly comment supports the view, that mere disrespect or affront to the judge’s sense of dignity will not sustain a citation for contempt.45 The line between insult and obstruction, however, is not clearly delineated, and at some point disrespect and insult become actual and material obstruction. The Supreme Court, in In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972), has recently shed some light on where that line is to be drawn.
In Little, the Court reversed the contempt conviction of a defendant arguing pro se who made allegations before the jury that the nisi prius court by its bias had prejudiced his trial and that he was a political prisoner. The trial court found that the remarks were “very disrespectful” and that they “reflected on the integrity of the Court and tended to subvert and prevent justice.” In effect, the Supreme Court concluded that it was improper for the court to have slid so easily from the first conclusion to the second. Quoting from Brown v. United States, 356 U.S. 148, 153, 78 S.Ct. 622, 626, 2 L.Ed.2d 589, the Court said, “Trial courts * * * must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” In an effort to draw the line between mere disrespect and obstruction, the Court continued, “The fires which [the language] kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.” Thus in view of the fact that Little’s remarks came during his summation to the jury, a period which lends itself easily to the interjection of prejudice, the Supreme Court seems to have expressed a high degree of tolerance in distinguishing disrespect from obstruction. A showing of imminent prejudice to a fair and dispassionate proceeding is, therefore, necessary to support a contempt based upon mere disrespect or insult.
In determining whether the disrespectful remarks so imperil the proceeding, “the reasonably to be expected reactions of those in the courtroom to the words or acts under scrutiny are relevant.” Parmelee Transp. Co. v. Keeshin, 292 F.2d 806, 810 (7th Cir. 1961). And as we further explained in that case, “We must * * * bear in mind that the test of contumaciousness of words spoken during a court proceeding is their effect as contemporaneously understood by those who heard the words spoken in the courtroom. This includes the judge as well as other persons present.” Id. Of course, the manner in which insulting remarks, not obstructive of themselves, are leveled may accomplish an obstruction. For example, shouting the remarks or accompanying their utterance with physical demonstration may provide the necessary element. Moreover, the very delay of the proceedings occasioned by a disrespectful outburst or other misbehavior may be sufficient to constitute a material obstruction. Thus, if a not insubstantial delay is entirely unnecessary and the misconduct serves, for instance, solely to vent the speaker’s spleen, the requisite obstruction would be present.
Before leaving the subject of disrespect and affront to the judge’s sensibilities comment is needed on the argument advanced by Seale that consideration should be given to the fact that language patterns and word choice vary greatly between diverse social, ethnic, economic and political groups. It is manifest that words scarcely used by some persons may be every-day language to many people who appear in courts. While these differences are relevant to the inquiry into intent, there can be little doubt that the jury is best suited to resolve this question.
On the positive side of the obstruction question, failure to heed the directive of the court to desist from arguing, to sit down, or to remain quiet may indeed constitute an actual material obstruction to the administration of justice. The unmistakable implication of In re McConnell, 370 U.S. 230, 235, 236, 82 S.Ct. 1288, 8 L.Ed.2d 434, is that defiance of the court’s order to cease questioning would have actually obstructed the proceedings.46 As governor of the trial, the trial judge must have the authority necessary to ensure the orderly and expeditious progress of the proceedings. His directives in exercise of this authority must be obeyed; otherwise the clear result would be courtroom chaos. Wholly arbitrary limits on argument will, if prejudicial, merit reversal of the substantive case, but that hardly can excuse open defiance of the court’s commands. United States v. Offutt, 145 F.Supp. 111, 114 (D.D.C.1956), modified, 247 F.2d 88 (D.C.Cir.), certiorari denied, 355 U.S. 856, 78 S.Ct. 85, 2 L.Ed.2d 64 (1957); see United States v. Sacher, 182 F.2d 416, 430 and 454 (concurring opinion of Frank, J.) (2d Cir. 1950), affirmed, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717. We do not say that automaton-like reflexive obedience to the court’s orders is necessary to avoid a contempt citation. The law does not expect unhuman responsiveness. A certain amount of leeway must be allowed. But where the directive is clear, the judge’s insistence on obedience is not undercut by his further rejoinder, and the party directed understands what is being asked of him, he must obey. See Jones v. United States, 80 U.S.App.D.C. 109, 151 F.2d 289, 290 (1945); United States v. Bollenbach, 125 F.2d 458, 460 (2d Cir. 1942).
Applying the above standards to the contempt specifications against Seale, we find charges 1, 2, 3 and 5 insufficient as a matter of law. The full text of the trial judge’s specifications appears in the Appendix to this opinion. In resolving the legal sufficiency of these specifications, we have determined that regardless of the intent with which the conduct was engaged in, no actual, material obstruction occurred which would warrant imposition of the contempt sanction. This does not imply that the twelve specifications which are being sent back for jury trial necessarily depict obstructions or show the other elements of misbehavior and wrongful intent necessary for a contempt conviction. As the Supreme Court observed in Fisher v. Pace, 336 U.S. 155, 161, 69 S.Ct. 425, 428, 93 L.Ed. 569, “In a case of this type the transcript of the record cannot convey to us the complete picture of the courtroom scene. It does not depict such elements of misbehavior as expression, manner of speaking, bearing, and attitude of the petitioner.” At the hearing on remand, the jury must consider these elements as the factual setting is unfolded before it. With respect to those specifications remanded, the jury must consider the factual questions bearing on misbehavior, obstruction and on intent. Insofar as the conduct delineated in the legally insufficient specifications may bear on those factual questions for the remaining specifications, the jury may consider that conduct, which forms part of the record, admissible against the appellant. See p. 372, infra.
Proceedings on Remand
First of all, we agree with the Government that any district judge who has officially expressed an opinion in this case should not sit in judgment.47 Consequently this case will be returned to the district court’s Executive Committee for reassignment pursuant to its rules.
At the remand, the specifications we have upheld as a matter of law should be treated as charges against Seale and have no other effect.48 Jurors infected by any prejudicial publicity against Seale will of course not be permitted to serve.
The present contempt certificate in conjunction with this opinion is sufficient to satisfy the due process requirement of notice of the accusations and the purpose of Rule 42(b) of the Federal Rules of Criminal Procedure, which requires a statement of the “essential facts constituting the criminal contempt charged.” Due to the danger that the jury might give undue weight to the trial judge’s inferential findings and descriptions contained in the preface and conclusion of the contempt certificate (see Appendix), these findings and descriptions shall not be placed before the jury. However, the judge handling this case on remand may reformulate as accusations those findings which properly constitute elements of the offense charged. The revised certificate must be given to the defendant and an announcement of the time and place of the hearing must be made sufficiently in advance of the hearing date to permit reasonable preparation.
All charges against Seale that we have found legally sufficient shall be tried together.
The entire trial transcript up to the declaration of a mistrial was made part of the contempt proceeding and shall be admitted against Seale, on the remand, in accordance with Mayberry v. Pennsylvania, 400 U.S. 455, 466, 91 S.Ct. 499, 27 L.Ed.2d 532. The Government’s case should commence with the introduction of the trial transcript49 and may be augmented by witnesses, subject to cross-examination by Seale, and by statements that meet the exceptions to the hearsay rule and are not violative of the Sixth Amendment right of confrontation.
We accept the following standards suggested by the Government as an accurate statement of the requisites of due process:
“Defendants have a due process right to defend against the contempt charges and offer a mitigating explanation. Assistance of counsel and the right to a public hearing apply. The presumption of innocence, as in other criminal cases, attaches and all elements of the offense must be proved beyond a reasonable doubt.”50
In addition, the right to compulsory process must be afforded, and Seale may submit evidence, testimonial or documentary, that is relevant “either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.” Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767; Offutt v. United States, 232 F.2d 69, 71 (D.C.Cir.), certiorari denied, 351 U.S. 988, 76 S.Ct. 1049, 100 L.Ed. 786 (1956). However, in the exercise of sound discretion, the hearing judge may decide that it is unnecessary that either the trial judge or prosecutors be called as witnesses. Offutt v. United States, supra, at 72. This would avoid tension and injection of personalities. The second judge may be able to get along without them because usually both the facts of the contempts and any judicial improprieties, to the extent material in mitigation, will be adequately established by the record. Where the record is inadequate, live witnesses such as other court officers and bystanders could be called to testify.
The next presiding judge is in no way bound by the sentences originally imposed. As already indicated, it would be within his discretion to determine that the outside limit for the aggregate sentence would be six months, and obviate the necessity of having a jury. Seale need not be given credit for the claimed year and a half served, since his only federal time served, when not in confinement in connection with California or Connecticut charges, was from May 25, 1971, until May 28, 1971.51 Only that limited time need be credited toward any sentence imposed upon remand.
The foregoing guidelines are established under our supervisory power in an attempt to achieve judicial economy. We must and do rely on the good sense of the substitute trial judge to implement them upon the remand.
Since we have held that it was improper for Seale to have been summarily punished under Rule 42(a) of the Federal Rules of Criminal Procedure, we need not decide whether the proceeding below was defective as to notice or hearing. We have considered all arguments presented by the parties and amici curiae in reaching our conclusion that this cause must be remanded for jury trial before a different judge.