United States District Court, N.D. Illinois, Eastern Division
August 11, 2004.
CLINTON PAYNE, III and COREY L. GILKEY. IN THE MATTER OF: ROBERT P. AULSTON, III.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
The United States of America ("the government") brought a
Notice and Petition for an Amended Rule to Show Cause against
Defendant, Robert P. Aulston, Ill. The Government contends that
Defendant made false representations before the Court. The
parties stipulated to the underlying facts in this matter, but
Defendant contends that the Government failed to prove, beyond a
reasonable doubt, that Defendant violated the criminal contempt
statute. Presently before the Court is Defendant's Motion for
Judgment of Acquittal. For the following reasons, that motion is
On May 13, 2003, Robert P. Aulston, III, then counsel for both
defendants in United States v. Clinton Payne, III, and Corey L.
Gilkey, 03 CR 398, filed an attorney appearance form with the
Court. Mr. Aulston signed the appearance form and provided his
name, his office address in Detroit, Michigan, his telephone and
fax numbers, and his electronic mail address. Mr. Aulston also
noted his Illinois Attorney Identification Number on the
appearance form, which was 6230608.
The appearance form asked whether the attorney was a member of
the trial bar of the Court, stating: "MEMBER OF TRIAL BAR?" The
appearance form also asked whether the attorney was appearing as
the trial attorney in the matter, stating: "TRIAL ATTORNEY?" Next
to each of those two questions were boxes for "yes" or "no"
answers. Mr. Aulston checked both boxes indicating "yes."
According to the records of the Clerk's Office for the United
States District Court for the Northern District of Illinois, Mr.
Aulston is not a member of either the general bar or the trial
bar of this Court, was not a member of either of those bars at
the time he filed the appearance form on May 13, 2003, and has
never been a member of this Court's general or trial bars.
Among the instructions on the reverse side of the appearance
form was Item 6, "Appearances and Trial Bar Membership." Item 6
stated, in relevant part:
All attorneys filing appearances must indicate
whether or not they are members of the trial bar of
this Court and whether or not they are the attorney
who will try the case in the event that it goes to
In criminal actions, an attorney who is not a member
of the trial bar may not file an individual
appearance. Pursuant to Local Rule 83.12, a member of
the trial bar must accompany such attorney and must
also file an appearance.
No member of this Court's trial bar, nor any other attorney,
accompanied Mr. Aulston to court. Nor did any attorney file any
appearance in the case along with Mr. Aulston. On May 23, 2003, counsel for the government sent Mr. Aulston a
letter stating the following:
I noted on the appearance form you filed with the
Court that you stated you are a member of the trial
bar and intend to serve as the trial attorney if this
matter goes to trial. It has come to my attention
that you are not a member of the trial bar or the
general bar for the Northern District of Illinois. I
am sending this letter to you as a courtesy and to
give you an opportunity to take any action you deem
necessary to comply with the local rules of the
Northern District of Illinois, including but not
limited to Local Rules 83.12 and 83.14.
That letter was sent by facsimile at approximately 10:10 a.m. on
May 23, 2003, to Mr. Aulston at the Wade Law Group; and Mr.
Aulston received the letter on or about May 23, 2003.
Mr. Aulston took no action in response to the government's
letter. On June 2, 2003, the government filed a memorandum with
the Court concerning whether Mr. Aulston could represent both
defendants jointly in light of the potential for conflicts of
interest. In its memorandum, the government noted the following:
Because the scope of the Court's inquiry includes
whether the defendant has an understanding of the
reconciliation of the risks and gains from joint
representation, the Court must also consider the
"gains" side of the equation. The inquiry should
include an assessment of the conflicted attorney's
qualifications and experience, including federal
trial experience and experience in complex financial
or tax cases. The government notes on information and
belief that attorney Aulston, who is licensed to
practice law in the State of Illinois, is not a
member of this Court's trial or general bars,
although he represented in his appearance filed with
the Court on May 13, 2003, that he is a member of the
On behalf of the Defendants Payne and Gilkey, Mr. Aulston filed
a response to the government's memorandum on June 9, 2003.
Government Exhibit D is a true and correct copy of the response
filed by Mr. Aulston. Mr. Aulston signed the response. Under the
heading "Targeting Defense Counsel," the response stated, in part, the
When undersigned counsel executed the standard form
for filing an appearance in U.S. District Court, he
completed the form as he has on numerous previous
occasions, without any special attention to the
significance of the two (2) boxes checked. Since
1995, undersigned counsel has filed his appearance in
several cases both as plaintiff's and defendant's
counsel, and in numerous bankruptcies before the U.S.
District Court for the Northern District of Illinois.
In addition to being licensed to practice law in the
State of Illinois, undersigned counsel was duly
admitted and qualified as an attorney of the United
States District Courts of Illinois and Michigan, and
the United States Tax Court, appearing in numerous
cases in each, without ever having been informed that
he is "not a member of the trial bar or the general
bar." Counsel also has been admitted pro hac vice
in state courts in Indiana, New York, and Michigan.
An inquiry and application for admission to the bar
of the United States District Court for the Northern
District of Illinois has been submitted to the
federal courts attorney admissions coordinator, to
resolve what can be no more than a technical error.
If required to do so, counsel would be willing to be
admitted pro hac vice, or associate with a local
member of the trial bar. . . .
Personally attacking defense counsel, as has the
Government in questioning (a) counsel's
qualifications, and (b) counsel's ability to discern
when and if a conflict of interest may arise as to a
joint representation of both Defendants, may rise to
a level of constitutional error. . . . The
prosecution should not impugn, either directly or by
implication, the integrity of defense counsel
According to records of the Clerk's Office for the United
States District Court for the Northern District of Illinois,
there is no record of any attorney admission application having
been submitted on or before June 9, 2003, by or on behalf of Mr.
Aulston to the Court's attorney admissions coordinator. The government filed a supplemental memorandum with the Court
on July 3, 2003. In its supplemental memorandum, the government
noted for the Court that the government had notified Mr. Aulston
by its May 23 letter of the incorrect appearance form before
bringing the matter to the Court's attention. According to the
records of the Clerk's Office for the United States District
Court for the Northern District of Illinois, as of July 3rd,
the date of the government's supplemental memorandum, there was
no record of Mr. Aulston's seeking to be admitted to this Court.
On July 8, 2003, Mr. Aulston filed an application with the
Court, pursuant to Local Rule 83.14, seeking permission to appear
pro hac vice in the case. The application asked the following
Has the applicant ever been censured, suspended,
disbarred, or otherwise disciplined by any court?
Mr. Aulston answered the question "No." Underneath that question,
and four other "yes" or "no" questions concerning the applicant's
professional disciplinary history, the application stated:
NOTE: If the answer to any of the above questions
is yes, please attach a brief description of the
incident(s) and the applicant's current status before
any court, or any agency thereof, where disciplinary
sanctions were imposed, or where an investigation or
investigations of the applicant's conduct may have
been instituted [emphasis in original].
The five questions on the application concerning professional
discipline, including the question asking whether the applicant
was ever censured, suspended, disbarred, or otherwise disciplined
by any court, seek information that is material to the Court in
determining whether the applicant should be permitted to appear
pro hac vice. Mr. Aulston signed the pro hac vice application under penalty
of perjury. The declaration which Mr. Aulston certified by his
signature read as follows:
I have read the Rules of Professional Conduct for the
Northern District of Illinois, effective November 12,
1991 (Local Rules 83.50 through 83.58), and the
Standards for Professional Conduct within the Seventh
Federal Judicial Circuit, effective December 15,
1992, and will faithfully adhere to them. I declare
under penalty of perjury that the foregoing is true
On July 10, 2003, the Court accepted the application and
ordered that Mr. Aulston may appear pro hac vice.
Mr. Aulston has been disciplined previously by two courts.
On May 24, 2002, the Supreme Court of Illinois suspended Mr.
Aulston from the practice of law for ninety days, with the
suspension stayed and Mr. Aulston instead placed on probation for
180 days, according to the records of the Illinois Attorney
Registration and Disciplinary Commission ("ARDC").
On October 14, 2002, after learning of the Illinois Supreme
Court's disciplinary order, the Supreme Court of Louisiana
entered a reciprocal order of discipline against Mr. Aulston,
according to records of the Supreme Court of Louisiana. The
Louisiana Supreme Court imposed the same sanction against Mr.
Aulston as had the Illinois Supreme Court, based upon the same
On September 9, 1981, Mr. Aulston was disbarred by the State of
Louisiana for committing criminal offenses that resulted in his
incarceration, according to records of the Supreme Court of
Louisiana. Mr. Aulston was readmitted to practice law in
Louisiana in 1995, and his admission to practice in the State of Illinois took place
after full disclosure of his disciplinary history in Louisiana.
Under 18 U.S.C. § 401(3), "[a] court of the United States shall
have the power to punish by fine or imprisonment, or both, at its
discretion, such contempt of its authority, and none other, as
. . . Disobedience of resistance to its lawful writ, process,
order, rule, decree, or command" To make a finding of criminal
contempt under § 401(3), there must be "a lawful and reasonably
specific order of the court and a willful violation of that
order." Doe v. Maywood Hous. Auth., 71 F.3d 1294, 1297 (7th
Cir. 1995) (Maywood Hous. Auth.). Willfulness is also an
element of criminal contempt and is defined as a "volitional act
done by one who knows or should reasonably be aware that his
conduct is wrongful." Maywood Hous. Auth., 71 F.3d at 1297
(citation omitted). Willfulness can be inferred from facts and
circumstances. Maywood Hous. Auth., 71 F.3d at 1297 (citation
omitted). All elements of the contempt must be proven beyond a
reasonable doubt. Maywood Hous. Auth., 71 F.3d at 1297
Here, the Government has proven, beyond a reasonable doubt,
that Defendant willfully violated Local Rules 83.53.3(a)(1) and
83.58.1(a)(1). Local Rule 83.53.3(a)(1) states that "[i]n
appearing in a professional capacity before a tribunal, a lawyer
shall not . . . make a false statement of material fact of law to
a tribunal which the lawyer knows or reasonably should know is
false." Local Rule 83.58.1(a) provides that "[a]n applicant for
admission to the bar, or a lawyer in connection with a bar
admission application or in connection with a lawyer disciplinary
matter, shall not . . . make a statement of material fact known
by the applicant or the lawyer to be false." As stipulated between the government and Defendant, on three
separate occasions, Defendant made false statements to the Court
by: (1) stating that he was a member of the trial bar; (2)
stating, in a filing with this Court, that he had applied for
admission to practice in the Northern District of Illinois; and
(3) misrepresenting his professional disciplinary history in an
application for admission pro hac vice.
The government has proven, beyond a reasonable doubt, that
these false statements were material, as they affected
Defendant's ability to represent persons in criminal matters.
These statements also affected the Court's decision as to whether
to grant Defendant's application to appear pro hac vice.
The government has proven, beyond a reasonable doubt, that
these false statements were made willfully by Defendant, as well.
After the government informed Defendant that he was not a member
of the trial bar, Defendant filed a brief with the Court falsely
stating that he had applied for attorney admission. Defendant
then filed his pro hac vice form and stated, under the penalty
of perjury, that he had read the Local Rules concerning
professional conduct. Despite receiving these warnings, Defendant
persisted in his conduct and omitted his disciplinary history on
his pro hac vice application, even though it was severe and, in
two of the three instances, had occurred relatively recently.
Defendant does not contest that he willfully violated the Local
Rules but argues that he must violate a specific court order to
be found guilty under § 401(3). However, the text of the statute
provides that a finding of contempt can be made for disobedience
of a lawful rule. Findings of contempt have also been issued for
violations of local rules. United States v. Kozel,
908 F.2d 205, 208 (7th Cir. 1990); accord United States v. Marthaler,
571 F.2d 1104, 1105 (9th Cir. 1978) ("Intentional violation of a rule of court can be
found to be a contempt of court."); United States v. Morrissey,
996 F. Supp. 530, 540 (E.D. Va. 1998), aff'd, 168 F.3d 134 (4th
Here, the government has proven, beyond a reasonable doubt,
that the Local Rules Defendant violated are lawful and reasonably
specific. The Local Rules were promulgated under authority given
to the courts to "prescribe rules for the conduct of their
business." 28 U.S.C. § 2071; Fed.R. Crim. P. 57; Fed.R. Civ. P.
83. Moreover, Local Rules 83.53.3(a)(1) and 83.58.1(a)(1),
respectively, specifically proscribe attorneys from making false
statements before a court or making false statements in
connection with a bar admission application. As discussed above,
Defendant was aware that these rules applied to him. Defendant
acknowledged, under the penalty of perjury, that he had read
Local Rules 83.53 and 83.58; Defendant was also informed as to
the applicability of the rules by the government. Defendant does
not argue to the contrary.
Finally, Defendant contends that the charging document, the
Notice and Petition for an Amended Rule to Show Cause, does not
"assert that [Defendant] committed contempt by willfully
violating Rules 83.53 and 83.58." (Def.'s Reply at 3). However,
the charging document clearly states that Defendant, on three
separate occasions, made false statements to the Court by: (1)
stating that he was a member of the trial bar; (2) stating, in a
filing with this Court, that he had applied for admission to
practice in the Northern District of Illinois; and (3)
misrepresenting his professional disciplinary history in an
application for admission pro hac vice. Although the charging
document does not specifically state that Defendant violated
Local Rules 83.53 and 83.58, it clearly provided the factual
details necessary so that Defendant could prepare his defense.
See, e.g., United States v. Fassnacht, 332 F.3d 440, 444-46
(7th Cir. 2003). CONCLUSION
For the foregoing reasons, the government has proven, beyond a
reasonable doubt, that Defendant is guilty of violating
18 U.S.C. § 401(3). Defendant's Motion for Judgment of Acquittal is denied.
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