The opinion of the court was delivered by: Getzendanner, District Judge.
MEMORANDUM OPINION AND ORDER
This matter is before the court, after hearing, on the
court's notice under Rule 42(b) of the F.R. Cr. P. regarding
the failure of the defendant's attorney, Isaiah S. Gant, to
appear at sentencing.
Sentencing of the two co-defendants was set before me on
January 19, 1982, at 10:00 a.m. Mr. Gant had actual notice of
the time and date of the sentencing. Shortly after 10:00 a.m.
on January 19, 1982, the case was called. Present were both
the co-defendant's attorney, the probation officer who had
prepared the presentence reports, numerous family members of
both defendants, the court, and the court's staff. Mr. Gant
was not present and he had not informed the court's clerk that
he would be late. The court attended to other matters and
then, Mr. Gant still not being present, took a recess. At
about 10:45 a.m. I proceeded with the sentencing of the
co-defendant and found Mr. Gant in contempt of court. I fined
Mr. Gant $400.00.
At 11:00 a.m., after the case on trial had been called, Mr.
Gant arrived. I informed him that he had been held in contempt
of court, that the sentencing of his client had been put over,
and that I was unable to proceed with the sentencing because
the case on trial had already been called.
Mr. Gant employed counsel who persuaded me that I must
proceed under Rule 42(b) because the attorney's conduct had
not occurred in my presence. I set aside the prior finding of
contempt and set the matter for hearing after giving the
notice required by Rule 42(b). Mr. Gant and his attorney
appeared for the hearing February 5, 1982. At that time Mr.
Gant's attorney informed the court that there were no
witnesses to appear against Mr. Gant and Mr. Gant was
asserting his right under the Fifth Amendment to remain
silent. I asked Mr. Gant directly whether he wanted to address
the court and he refused the opportunity. I adjourned the
hearing and thereafter requested that the United States
Attorney prosecute the contempt.
The hearing was rescheduled for April 7, 1982. At that time
the Assistant United States Attorney to whom the underlying
criminal case was assigned testified with respect to the
notice given to all counsel concerning the time and date of
the sentencing and Mr. Gant's failure to appear at the
sentencing. The government rested. Mr. Gant declined to
testify on his own behalf. The hearing ended. I asked for
briefs on the question of whether the government's proof was
adequate since the proof did not establish why Mr. Gant had
failed to appear. The government timely filed its memorandum
on April 16, 1982. Mr. Gant has failed to comply with the
court's order that he also file a memorandum. (At the end of
the hearing, his attorney stated that he would file a
The question is whether the "willful" conduct required by
Rule 42(b) is established when an attorney has actual notice
of an important court date and fails to appear, and, when
given an opportunity both informally and at a hearing to
explain his failure to appear, the attorney remains silent.
The government's memorandum persuades me that it is.
The purpose of providing a hearing under the circumstances
which existed in this case is to give the attorney an
opportunity to explain his tardiness. Chula v. Superior Court,
57 Cal.2d 199, 18 Cal.Rptr. 507, 512-13, 368 P.2d 107, 112-13
(Cal. Sup. Ct. 1962) (concurring opinion of Chief Judge Gibson
and dissenting opinion of Judge Traynor).
Witnesses who fail to appear to testify pursuant to a
subpoena are found in contempt unless an adequate excuse is
offered on their behalf. United States v. Snyder, 413 F.2d 288
(9th Cir. 1969); United States v. Willis, 486 F. Supp. 63
(N.D.Ill. 1980) (J. Crowley); In re: Thompson, 213 F. Supp. 372,
377 (S.D.N.Y. 1963), reversed on other grounds, United States
v. Thompson, 319 F.2d 665 (2d Cir. 1963). No lesser rule should
be imposed on attorneys who are schooled in their obligations
to the court.
Mr. Gant's refusal to offer an explanation to me concerning
his failure to appear is conduct unbecoming to an officer of
this court. But it is his legal right. The consequence of his
failure to discuss the matter leaves me with no alternative.
Mr. Gant's conduct in failing to appear for the sentencing of
Mr. Ferm was willful and he is guilty of criminal contempt.
Immediately prior to the sentencing I shall enter the court's
judgment in the presence of Mr. Gant. The matter shall be set
for sentencing on June 25, 1982 at 10:30 a.m.
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