PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-4108

WHITT NEAL,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-96-21)

Argued: September 23, 1996

Decided: November 27, 1996

Before WILKINS, Circuit Judge, BUTZNER, Senior Circuit Judge,
and MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Wilkins wrote the
opinion, in which Senior Judge Butzner and Senior Judge Michael
joined.

_________________________________________________________________

COUNSEL

ARGUED: George Vernon Laughrun, II, GOODMAN, CARR &
NIXON, Charlotte, North Carolina, for Appellant. Clifford Carson
Marshall, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee. ON BRIEF: Mark T. Cal-
loway, United States Attorney, James M. Sullivan, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Whitt Neal appeals an order of the district court finding him guilty
of criminal contempt for failing to obey a subpoena. See 18 U.S.C.A.
§ 401(3) (West 1966). Because the district court committed plain
error in failing to refer the matter to the United States Attorney or
some other appropriate prosecutor, we vacate Neal's conviction and
remand for further proceedings consistent with this opinion.

I.

Neal, an officer with the Charlotte-Mecklenburg Police Depart-
ment, was responsible for coordinating law enforcement efforts
regarding the activities of various abortion-protest groups. On January
25, 1996, Neal was served with a subpoena directing him to appear
in federal district court on the morning of February 2, 1996 to testify
as a witness in a civil lawsuit involving some of the protestors. Neal
failed to appear in court pursuant to the subpoena. As a result, the dis-
trict court issued an order requiring Neal to appear and show cause
why he should not be held in contempt of court.

The district judge conducted the resulting hearing without the aid
of a prosecutor, deciding himself which witnesses would testify
against Neal. The court called four witnesses to the stand and con-
ducted the direct examination of them. It is apparent that the court
learned the substance of the testimony of these witnesses prior to the
hearing through extrajudicial means. The principal witness against
Neal was Christine Stole, the process server who served him with the
subpoena. Stole testified on direct examination that when she gave
Neal the subpoena he commented, "I'm going to throw this in the
trash can." J.A. 19. During cross-examination, Stole conceded that
she could not be sure he was referring to the subpoena. The court also
called as witnesses two Deputy United States Marshals and Neal's

                    2
supervisor, all of whom had conversations with Neal relating to his
failure to appear.

Neal, who was represented and examined by counsel, testified that
he did not intentionally disobey the subpoena. He claimed that he
inadvertently overslept, having worked the night shift on the evening
prior to February 2, 1996. Consequently, he argued, he lacked the req-
uisite criminal intent for a contempt conviction. The district court
conducted a brief cross-examination, during which Neal admitted that
he received the subpoena and that he was aware that he was required
to appear. Discounting Neal's explanation for not appearing, the court
concluded that he wilfully disobeyed the subpoena. Neal was sen-
tenced to a two and one-half day term of imprisonment.

II.

Neal contends that the district court erred in assuming the inconsis-
tent roles of prosecutor and judge during the hearing. Because Neal
failed to raise this objection below, we will reverse only if the district
court committed plain error in failing to refer the matter to the United
States Attorney or otherwise appoint a prosecutor. See Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993); United
States v. David, 83 F.3d 638, 641 (4th Cir. 1996). To reverse for plain
error, Rule 52(b) requires us to find: "1) error; 2) that is plain; and 3)
that affect[s] substantial rights." David, 83 F.3d at 641 (alteration in
original) (internal quotation marks omitted). Even if these three
requirements are satisfied, however, we will exercise our discretion
to correct the error only if it "seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings." Olano, 507 U.S. at 732
(alteration in original) (internal quotation marks omitted).

A.

Our first inquiry is whether the district court erred in conducting
Neal's criminal contempt hearing without the aid of a prosecutor. We
conclude that it did.

It is well established that courts possess an inherent "`power to
impose silence, respect, and decorum, in their presence, and submis-

                     3
sion to their lawful mandates.'" International Union, UMWA v.
Bagwell, 114 S. Ct. 2552, 2559 (1994) (quoting Anderson v. Dunn,
19 U.S. (6 Wheat.) 204, 227 (1821)). Moreover, courts are vested
with the power to initiate contempt proceedings to ensure that the
judiciary is not utterly dependent upon the other branches of govern-
ment to vindicate judicial authority. See Young v. United States ex rel.
Vuitton et Fils S.A., 481 U.S. 787, 795-96 (1987) (holding that a court
must possess the power to appoint a private prosecutor in a contempt
action as means of self-protection). The contempt power, however, is
subject to abuse. Bagwell, 114 S. Ct. at 2559. Therefore, "only `[t]he
least possible power adequate to the end proposed' should be used in
contempt cases." Young, 481 U.S. at 801 (alteration in original) (quot-
ing United States v. Wilson, 421 U.S. 309, 319 (1975)).

The power of a court to impose sanctions for civil contempt differs
in several respects from its authority to impose sanctions for criminal
contempt, including the procedural safeguards that must be followed.
See Bagwell, 114 S. Ct. at 2559. Proceedings for civil contempt
"leave the offended judge solely responsible for identifying, prosecut-
ing, adjudicating, and sanctioning the contumacious conduct." Id. In
contrast, "criminal contempt [is] `a crime in the ordinary sense'" and
requires that the contemnor be afforded fundamental procedural safe-
guards. Young, 481 U.S. at 799 (quoting Bloom v. Illinois, 391 U.S.
194, 201 (1968)).

The procedures attendant to the prosecution of a criminal contempt
charge depend largely upon whether the conduct constitutes direct or
indirect contempt. See Young, 481 U.S. at 798. Direct, or in-court,
contempt involves conduct occurring "in the presence of the judge,
which disturbs the court's business, where all of the essential ele-
ments of the misconduct are under the eye of the court . . . and where
immediate punishment is essential to prevent demoralization of the
court's authority before the public." In re Oliver, 333 U.S. 257, 275
(1948) (internal quotation marks omitted); see United States v.
Willett, 432 F.2d 202, 204 (4th Cir. 1970) (per curiam). Direct con-
tempt may be punished summarily without notice and a hearing. See
Bloom v. Illinois, 391 U.S. 194, 204 (1968). In a summary proceeding
for direct criminal contempt, "the otherwise inconsistent functions of
prosecutor, jury and judge mesh into a single individual."1 Sandstrom
_________________________________________________________________
1 Except for serious criminal contempts, the procedural safeguards
required for criminal contempt proceedings do not apply when the con-

                    4
v. Butterworth, 738 F.2d 1200, 1209 (11th Cir. 1984), cert. denied,
461 U.S. 1109 (1985). Indirect, or out-of-court, contempt does not
occur within the presence of the court and must be proven through the
testimony of third parties or the testimony of the contemnor. See
Willett, 432 F.2d at 204; In re Heathcock, 696 F.2d 1362, 1365 (11th
Cir. 1983). The inherent power of the court to punish indirect con-
tempt is limited because conduct occurring out of the presence of the
court does not "threaten[ ] a court's immediate ability to conduct its
proceedings." Bagwell, 114 S. Ct. at 2559. Thus, indirect contempt
may never be punished summarily, see Cooke v. United States, 267
U.S. 517, 536-37 (1925), but rather requires adherence to "`more nor-
mal adversary procedures,'" Young, 481 U.S. at 798 (quoting Bloom,
391 U.S. at 204).2

Among those procedures that are fundamental to our adversary sys-
tem is the use of an independent prosecutor to pursue charges against
a criminal defendant. It is axiomatic that the prosecution of crimes is
not a proper exercise of the judicial function. See, e.g., In re
Murchison, 349 U.S. 133, 137 (1955); United States v. Cox, 342 F.2d
167, 171 (5th Cir.), cert. denied, 381 U.S. 935 (1965); see also
Bagwell, 114 S. Ct. at 2563 (Scalia, J., concurring) (noting that the
idea "[t]hat one and the same person should be able to make the rule,
to adjudicate its violation, and to assess its penalty is out of accord
with our usual notions of fairness and separation of powers"); Young,
481 U.S. at 816 (Scalia, J., concurring in judgment) (emphasizing that
the judicial power "does not include the power to seek out law viola-
tors in order to punish them--which would be quite incompatible
with the task of neutral adjudication"). Thus, when the contumacious
conduct at issue occurs out of the presence of the court or does not
interfere with an ongoing proceeding immediately before the court,
_________________________________________________________________
duct in question occurs in the actual presence of the court. See Bagwell,
114 S. Ct. at 2557 n.2.
2 Federal Rule of Criminal Procedure 42 preserves the historical dis-
tinction between in-court and out-of-court contempt. See Young, 481
U.S. at 799. The court may punish direct contempt in a summary fashion.
Fed. R. Crim. P. 42(a). Out-of-court contempt, however, may be pun-
ished only after the contemnor is afforded notice and a hearing. Fed. R.
Crim. P. 42(b).

                    5
the inherent contempt power does not permit a judge to dispense with
a prosecutor altogether and fill the role himself. In re Murchison, 349
U.S. at 136-39 (holding that the judge violated the Due Process
Clause of the Fourteenth Amendment when he initiated, prosecuted,
and adjudicated indirect criminal contempt charges); see American
Airlines, Inc. v. Allied Pilots Ass'n, 968 F.2d 523, 531 (5th Cir. 1992)
(holding that the district court erred when it " sua sponte initiated the
contempt proceeding, questioned the witnesses and otherwise acted as
prosecutor, and then decided all factual and legal issues"); In re
Davidson, 908 F.2d 1249, 1251 (5th Cir. 1990) (holding that the dis-
trict court committed reversible error when it prosecuted and adjudi-
cated criminal contempt charges); see also United States v. Griffin, 84
F.3d 820, 829 (7th Cir. 1996) (noting that the "crucial determinant"
of whether appropriate procedural protections have been afforded in
a criminal contempt proceeding is "the extent of the judge's intrusion"
into the authority of the executive branch to prosecute crimes). But cf.
In re Grand Jury Proceedings, 875 F.2d 927, 934 (1st Cir. 1989)
(concluding that a prosecutor need not be appointed for indirect crimi-
nal contempt proceedings if the evidence is so simple that the judge
conducting the proceedings may remain an impartial factfinder).

Here, it is undisputed that the proceedings against Neal were crimi-
nal in nature. Further, it is clear that Neal's conduct constituted indi-
rect contempt since the court did not witness "all of the essential
elements of the misconduct." In re Oliver, 333 U.S. at 275. Because
the district judge investigated the incriminating facts through extraju-
dicial means, introduced evidence against Neal, and otherwise pres-
ented the Government's case, he improperly assumed a prosecutorial
role. As a result, we conclude that it was error for the district court
to conduct the contempt proceeding without an independent prosecu-
tor.

B.

Having determined that the district court erred in prosecuting the
contempt charge against Neal, we next turn to the question of whether
the error is plain. An error, to be plain, must be"clear" or "obvious."
Olano, 507 U.S. at 734 (internal quotation marks omitted); David, 83
F.3d at 642. This standard is satisfied when the"settled law of the
Supreme Court or this circuit" establishes that an error has occurred.

                     6
United States v. Mitchell, 996 F.2d 419, 422 (D.C. Cir. 1993). In the
absence of such authority, decisions by other circuit courts of appeals
are pertinent to the question of whether an error is plain. See United
States v. Gastiaburo, 16 F.3d 582, 588 (4th Cir.) (looking to authority
from other circuits to determine whether error was plain), cert.
denied, 115 S. Ct. 102 (1994); see also United States v. Alli-Balogun,
72 F.3d 9, 12 (2d Cir. 1995) (stating that "we do not see how an error
can be plain error when the Supreme Court and this court have not
spoken on the subject, and the authority in other circuit courts is
split").

At the time of Neal's hearing, the settled law of the Supreme Court
was abundantly clear that the simultaneous assumption of the incon-
sistent roles of prosecutor and judge transgresses our most fundamen-
tal notions of procedural fairness.3 In In re Murchison, the Supreme
Court held that it was error for a judge to initiate, prosecute, and adju-
dicate charges of indirect criminal contempt. In re Murchison, 349
U.S. at 137-39; see also Young, 481 U.S. at 796-97 (accepting by
implication that district court could not prosecute an indirect criminal
contempt in ruling that the power to appoint a private attorney to
prosecute indirect contempt was necessary to protect the authority of
the judiciary). Moreover, the courts of appeals are in accord that a dis-
trict court exceeds its power in assuming the role of a prosecutor dur-
ing proceedings for indirect criminal contempt. See, e.g., Griffin, 84
F.3d at 829; American Airlines, 968 F.2d at 531; In re Grand Jury
Proceedings, 875 F.2d at 933-34;4 cf. United States v. Parodi, 703
_________________________________________________________________
3 An error is "plain" if the "error is clear both at the time of trial and
at the time of appeal." See David, 83 F.3d at 642.
4 The First Circuit recognized in In re Grand Jury Proceedings that the
failure to appoint an independent prosecutor may well require the judge
impermissibly to fill the role himself. In re Grand Jury Proceedings, 875
F.2d at 933-34. Nevertheless, the court concluded that in a situation in
which the evidence was straightforward, a judge would not be drawn
away from his role of neutral factfinder by acting as a prosecutor.
Although we disagree with the line drawn by the First Circuit, its recog-
nition that a judge acts improperly in prosecuting a contempt action in
circumstances that require the judge to assume an active prosecutorial
role squares with the weight of authority that, in cases involving indirect
contempt, the judge cannot both present the Government's case and
decide the factual and legal issues.

                    7
F.2d 768, 775-76 (4th Cir. 1983) (noting that a judge "should take
particular care" during trial that he does not "appear to usurp the role
of . . . the prosecutor"); United States v. Bland, 697 F.2d 262, 265 (8th
Cir. 1983) (warning against judicial assumption of "the mantle of an
advocate"); Figueroa Ruiz v. Delgado, 359 F.2d 718, 721-22 (1st Cir.
1966) (finding that a procedure whereby the trial judge introduced the
Government's case and cross-examined on behalf of the Government
denied the defendant due process). Thus, the district court committed
a "plain" error by failing to appoint an independent prosecutor.

C.

We next address the question of whether the error affects substan-
tial rights. See Olano, 507 U.S. at 734. Although this usually requires
that the error be prejudicial, this circuit has recognized "`a special cat-
egory of forfeited errors that can be corrected regardless of their
effect on the outcome.'" David, 83 F.3d at 647 (quoting Olano, 507
U.S. at 735). Errors that are not susceptible to harmless error review
fall within this special category and therefore "necessarily" affect sub-
stantial rights. David, 83 F.3d at 647.

The separation of powers among the branches of government is a
foundational principle to our system of government; the idea of lodg-
ing in one individual the power to prosecute and sit in judgment
"summons forth . . . the prospect of the most tyrannical licentious-
ness." Bagwell, 114 S. Ct. at 2559 (internal quotation marks omitted).
The assumption of the role of prosecutor by the district court is the
kind of error that we have long understood to undermine the integrity
of court proceedings: "[T]here is no liberty, if the power of judging
be not separated from the legislative and executive powers. . . .
[L]iberty can have nothing to fear from the judiciary alone, but would
have every thing to fear from its union with either of the other depart-
ments . . . ." The Federalist No. 78, at 491 (Alexander Hamilton)
(Benjamin F. Wright ed., 1961) (internal quotation marks omitted).
Because errors that "render a trial fundamentally unfair" are not sub-
ject to harmless error review, Rose v. Clark, 478 U.S. 570, 577-78
(1986), we conclude that the failure of the district judge to appoint an
independent prosecutor to pursue the charge of indirect contempt is
an error that affects substantial rights.

                     8
D.

Even if a district court commits an error that is plain and that
affects substantial rights, the use of our authority to correct the error
remains discretionary. See Olano, 507 U.S. at 735-36. We should
exercise this discretion if "a miscarriage of justice would otherwise
result," or "if the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings." Id. at 736 (internal quota-
tion marks omitted) (alteration in original). We have previously
rejected a per se rule requiring that every error that is not susceptible
to harmless error review must be noticed as plain error. David, 83
F.3d at 647-48. Instead, the proper analysis requires a case-by-case
examination in light of the entire record. See id. at 648.

Our review of the record convinces us that it is appropriate to
notice the plain error of the district court. The melding of the judicial
and prosecutorial functions is a fundamental error that undercuts the
dispersion of power among the branches and, as a result, casts doubt
on the integrity of the judicial process. To allow a district court to
investigate the matter, call the witnesses for the prosecution, conduct
the direct examination of them, and sit in judgment of the defendant
undoubtedly undermines the fairness, integrity, and public reputation
of judicial proceedings.

III.

For the foregoing reasons, we vacate Neal's conviction for criminal
contempt and remand for further proceedings consistent with this
opinion before a different district judge.5

VACATED AND REMANDED
_________________________________________________________________
5 Generally, there would be no impediment to the same judge handling
the adversarial proceedings for indirect contempt unless an appearance
of impropriety would indicate that recusal was appropriate. See Nakell v.
Att'y Gen. of N.C., 15 F.3d 319, 325 (4th Cir.), cert. denied, 115 S. Ct.
184 (1994) (noting that a judge is presumed to be qualified to preside
over a contempt hearing and that the contemnor bears a substantial bur-
den to demonstrate otherwise). Here, while we do not question the per-
sonal integrity of the district judge, because guilt was adjudicated in the
earlier proceeding, the appearance of fairness and impartiality is best
advanced by reassignment to another district judge.

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