       7RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2    United States v. Arredondo                   No. 02-1394
    ELECTRONIC CITATION: 2003 FED App. 0403P (6th Cir.)
                File Name: 03a0403p.06                    James A. Brunson, ASSISTANT UNITED STATES
                                                          ATTORNEY, Bay City, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS                                                _________________
               FOR THE SIXTH CIRCUIT                                              OPINION
                 _________________                                            _________________

 UNITED STATES OF AMERICA , X                                BOGGS, Chief Judge. The district court held Ricardo
                                                          Arredondo in criminal contempt of court after finding that he
             Plaintiff-Appellee, -                        gave fabricated evidence of ineffective assistance of counsel
                                   -
                                   -   No. 02-1394        to support his petition for postconviction relief from a federal
            v.                     -                      sentence for drug trafficking. Mr. Arredondo appeals from
                                    >                     this contempt conviction and from the district court’s
                                   ,                      accompanying denial of relief from his drug sentence. For the
 RICARDO ARREDONDO,                -
          Defendant-Appellant. -                          reasons explained below, we reverse the conviction for
                                                          contempt but affirm the denial of postconviction relief.
                                  N
       Appeal from the United States District Court                                      I
     for the Eastern District of Michigan at Bay City.
    No. 89-20081—Robert H. Cleland, District Judge.          Arredondo was convicted in 1990 of three counts of
                                                          distribution of heroin and conspiracy to distribute heroin, and
              Argued: September 16, 2003                  sentenced to 20 years in prison. In 1996, with the assistance
                                                          of another inmate, he filed a pro se petition under 28 U.S.C.
        Decided and Filed: November 13, 2003              § 2255 seeking relief from the sentence. As relevant here, the
                                                          petition asserted that his appointed attorney, Thomas Plachta,
  Before: BOGGS, Chief Judge; and KRUPANSKY and           provided constitutionally ineffective representation at
              CLAY, Circuit Judges.                       sentencing by failing to communicate two alleged
                                                          government plea offers to Arredondo for approval.
                  _________________                       Arredondo claims he would have accepted either of the offers
                                                          if given the chance, and would thereby have obtained a lighter
                       COUNSEL                            sentence than the one imposed on him. However, he stated,
                                                          Plachta “never advised [him] of any Plea Offer.”
ARGUED: Kevin M. Schad, SCHAD & COOK, Indian
Springs, Ohio, for Appellant.  James A. Brunson,            Arredondo’s trial judge had fixed a pretrial deadline of
ASSISTANT UNITED STATES ATTORNEY, Bay City,               August 27, 1990, after which no plea offers could be
Michigan, for Appellee. ON BRIEF: Kevin M. Schad,         extended. It is undisputed that Assistant United States
SCHAD & COOK, Indian Springs, Ohio, for Appellant.        Attorney Michael Hluchaniuk made one plea offer to Plachta
                                                          before this deadline, which would have involved a

                            1
No. 02-1394                 United States v. Arredondo        3    4        United States v. Arredondo                          No. 02-1394

recommended sentence of five to ten years, and that Plachta        the statement in the earlier affidavit that Plachta had “never
rejected this offer. The disputed issue regarding this offer is    advised” him of any offer. However, in the same paragraph
whether Plachta first communicated it to Arredondo for             of the second affidavit, Arredondo affirmed that Plachta never
approval.                                                          “made [Arredondo] aware” of a plea offer prior to trial. It is
                                                                   thus fairly clear that by “made aware” Arredondo meant
   Arredendo’s petition further alleged that Hluchaniuk made       communicating the offer before rejecting it. The district court
a second offer of a ten-year sentence to Plachta on the day of     denied the motion for reconsideration and Arredondo
trial, and that Plachta also rejected this offer without           appealed to this court.
conveying it to his client. Arredondo supported this
allegation with two affidavits. One affiant, Maria Teneyuque,        We reversed in part and remanded for an evidentiary
stated that her sister Mary Jane Dietrich (a material witness in   hearing on the petition. Arredondo v. United States, 178 F.3d
Arredondo’s trial) had overheard Plachta and Hluchaniuk            778 (6th Cir. 1999). We agreed with the district court that
discussing a plea before the trial. Arredondo also filed his       Arredondo was not entitled to a hearing on his allegations
own affidavit testifying that he had seen his lawyer talking       concerning the supposed second plea offer.1 Id. at 782-83 &
with Hluchaniuk on the day of trial, and had seen Plachta          n.3. However, we held that he was entitled to a hearing on
shake his head “no.”                                               the circumstances surrounding the first plea offer. Id. at 789.2
  Both Plachta and Hluchianiuk denied that any second offer          In closing, we noted that the inconsistent accounts in the
was made. Plachta did not squarely deny Arredondo’s claim          affidavits of Plachta, Hluchaniuk, and Arredondo suggested
that Plachta had failed to communicate the first offer.            that someone was not telling the truth:
Instead, Plachta filed an affidavit stating that he could not
specifically remember the events of that day, but that “my             Arredondo has lodged serious claims that attack his
practice has always been to communicate any plea offer made            attorney’s professional competence. If true, his petition
by the prosecution to my client regardless of my personal              deserves our attention. ... If false, Arredondo has
view as to the merits of the offer.”
  The district court denied Arredondo’s Section 2255 petition           1
                                                                         W e held that the original supporting affidavit accompanying the
without an evidentiary hearing. Arredondo then retained a          petition (in which M s. Teneyuq ue repo rted hearing the lawyers d iscuss a
different inmate paralegal to assist him and filed a pro se        second plea o ffer on the day of trial) was inadmissible as hearsay and
motion for reconsideration of the denial, pursuant to Fed. R.      implausible on its face, since the district judge in question had a firm
Civ. P. 59(e). This motion was accompanied by a new                policy of refusing to accept any negotiated pleas after the pretrial cut-off
affidavit from Arredondo that included new allegations: that       date. W e also rejected Arredon do’s second affidavit as a p ossible basis
                                                                   for a hearing, because the conversa tion sup posedly overheard by
Arredondo had himself heard some snippets of the alleged           Arredondo was not newly discovered evidence, and Arredondo had
plea conversation between Plachta and Hluchaniuk on the day        presented no valid reason for failing to include it with his original petition
of trial, including a reference to a ten-year sentence. In this    for relief.
affidavit, Arredondo stated that he had seen the prosecutor
                                                                        2
shake his head “no.” The new affidavit also alleged that                 W e also held that Arredondo should receive a hearing on his other
Plachta “advised” Arredondo “in words” on the day of trial         ineffective assistance claim regarding counsel’s failure to challenge the
that he had rejected a government plea offer, in tension with      drug quantity in the pre-sentenc e report (P SR). Arredondo, 178 F.3d at
                                                                   789.
No. 02-1394                      United States v. Arredondo             5    6    United States v. Arredondo                   No. 02-1394

  lied in a self-interested endeavor that could have caused                  of criminal contempt and imposed a sentence of six months
  unwarranted discipline of his attorney. The courts should                  in prison, consecutive to his prior sentence, and a $3,000 fine.
  not encourage such actions by refusing to punish                           The court found that Arredondo had engaged in a series of
  demonstrably false claims of ineffective assistance of                     fabrications. It noted that Arredondo’s story had changed
  counsel.                                                                   materially from his first affidavit to his second one: after the
                                                                             district court rejected the Teneyuque affidavit as hearsay,
Id. at 790.                                                                  Arredondo introduced an assertion that he had heard part of
                                                                             the day-of-trial plea discussion, without explaining why this
  The district court held an evidentiary hearing on                          seemingly important fact was not included in his first
Arredondo’s petition on January 13, 2000. Arredondo                          affidavit. The court concluded that Arredondo’s second
repeated in court the allegations of his second affidavit:                   affidavit had “learned” from the testimony that had come to
Plachta had failed to secure his client’s permission to reject               light, suggesting a deliberate fabrication. The court deemed
two plea offers, and Arredondo had personally heard                          the affidavit particularly incredible in light of Hluchaniuk’s
fragments of the discussion concerning the second offer being                denial of making any second plea offer. It also discounted
discussed. Assistant United States Attorney Hluchaniuk                       Arredondo’s claim that Plachta failed to pass on the first plea
again testified that he made one plea offer to Plachta prior to              offer. Drawing on its own knowledge of Plachta’s
the court deadline, but no second offer. Plachta testified that              “fastidious” work habits, the court found that he had duly
he did not specifically recall the plea discussions in                       passed on the first plea offer to Arredondo, and that
Arredondo’s case, but that it was always his practice to pass                Arredondo had simply fabricated his testimony to the
on such offers to his clients for approval.                                  contrary.
  The district court denied Arredondo’s Section 2255                            The district court went on to hold that the fabrications it
petition. It rejected his testimony about the existence of the               identified had significantly obstructed the administration of
second plea offer and about Plachta’s handling of the first                  justice, thereby amounting to a contempt of court. It
offer.3 The court went further, ordering a hearing on whether                described Arredondo’s testimony as involving “egregious,”
Arredondo had committed criminal contempt of court by                        “blatant,” and “transparently false” perjuries. It also noted
knowingly offering false evidence to support his petition.                   that the perjured allegations of misconduct were integral to
                                                                             Arredondo’s Section 2255 petition – the postconviction
  After briefing and a hearing on the contempt issue, pursuant               litigation, which had consumed a significant amount of
to Fed. R. Crim. P. 42(a),4 the court found Arredondo guilty                 judicial and public resources, had been founded chiefly on
                                                                             falsehoods. Finally, the court reasoned that Arredondo’s false
                                                                             testimony about Plachta had threatened to impose
    3                                                                        unwarranted professional discipline on an attorney, which
     The court also rejected a separate claim of ineffective assistance
premised on co unsel’s failure to challenge the PS R. Arredondo has          also revealed a tendency to obstruct the administration of the
abando ned this issue on app eal.                                            justice system.
    4
     At the time of the district court proceedings, the notice-and-hearing     Arredondo timely appealed from the contempt conviction
procedure used in Arredondo’s contempt proceeding was found at Fed. R.       and the denial of postconviction relief.
Crim. P. 42(b). However, the rule underwent a technical revision on
December 1, 20 02. T he procedure is now found at Fed. R. Crim. P. 42(a).
No. 02-1394                       United States v. Arredondo              7    8       United States v. Arredondo                         No. 02-1394

                                    II                                         Section 2255 petition, we affirm the denial of his petition
                                                                               without further discussion.
   We find no basis for disturbing the district court’s factual
findings that Arredondo willfully fabricated the allegations                                                      III
about Plachta’s misconduct in his affidavit and oral
testimony. The record plainly supports the finding that                          The remaining question is whether Arredondo’s
Arredondo’s statements about the alleged second plea offer                     falsifications constituted contempt of court under 18 U.S.C.
were willfully false; indeed, Arredondo has not meaningfully                   § 401.
challenged this conclusion. However, Arredondo does
contest the finding that he lied about Plachta’s failing to pass                  The power to punish contempts is “inherent in all courts,”
on the first plea offer. While the evidence for this conclusion                Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S.
was controverted, it was sufficient to support the district                    787, 795 (1987) (quotation marks omitted), allowing them to
court’s finding. Plachta testified that he always passed on                    protect themselves against assaults on their authority.
plea offers to clients. He had already represented five to                     However, because this power may be exercised without many
fifteen criminal defendants in federal court at the time of                    of the normal procedural protections of a criminal trial, it is
Arredondo’s trial, and had undertaken more representations                     subject to constitutional and statutory limitations. A federal
since then. In light of Plachta’s experience, his habit                        court has the power, codified in 18 U.S.C. §§ 401 and 401(1),
testimony was admissible under Fed. R. Evid. 406 to show                       to punish “such contempt of its authority, and none other, as
that he acted in conformity with that habit in this case.5 We                  [the following:] [m]isbehavior of any person in its presence
cannot say the district court’s decision to credit Plachta’s                   or so near thereto as to obstruct the administration of justice.”
testimony about the first plea offer and its finding that                      This statutory language originated in the federal Act of 1831,
Arredondo willfully fabricated his contrary testimony were                     and represented a “drastic curtailment of the contempt power”
clearly erroneous, especially in light of Arredondo’s                          previously recognized. Bloom v. Illinois, 391 U.S. 194, 203
established lack of credibility in other matters such as the                   (1968).
second plea offer.
                                                                                  The narrow category of contempts committed “in the actual
  These findings eliminate the factual basis for Arrendondo’s                  presence of the court” may be punished immediately by the
claim that his counsel provided ineffective assistance by                      judge who saw or heard the offending conduct. Fed. R. Crim.
failing to pass on plea offers to him. Since that is the only                  P. 42(b). This summary power is reserved for “exceptional
ground on which Arredondo has appealed the denial of his                       circumstances . . . such as acts threatening the judge or
                                                                               disrupting a hearing or obstructing court proceedings.”
                                                                               Vaughn v. City of Flint, 752 F.2d 1160, 1167 (6th Cir. 1985).
    5                                                                          Other contempts, which need only be “in or near”6 the court’s
      See Perrin v. Anderson, 784 F.2d 1040 (10 th Cir. 1986) (testimony
of five prio r incidents in which the defendant responded violently to the
presence of uniformed police officers, with proffer of three more                  6
incidents, sufficed to estab lish “habit” under Fed. R. E vid. 40 6); United         An element of every contempt proceeding under 18 U.S.C. § 401(1)
States v. Floulis, 457 F. Supp. 1350, 1355 n.2 (W.D. Pa. 1978)                 is proof that the alleged contemptuous conduct was “in . . . or . . . near”
(permitting the IN S to prove that defendant had been informed of his right    the presence of the court. Ibid.; see Vaughn, 752 F.2d at 1167. T his
to contact his consulate using evidence of INS’s routine office                element is to be understood “geographical[ly],” as requiring physical
procedures).                                                                   proximity to the co urt’s presence. Nye v. United States, 313 U.S. 33, 48-
No. 02-1394                        United States v. Arredondo               9    10       United States v. Arredondo                       No. 02-1394

presence, must be adjudicated according to the more                              review this mixed legal and factual question de novo. See
developed procedure of Fed. R. Crim. P. 42(a), the procedure                     United States v. Baggett, 342 F.3d 536, 541 (6th Cir. 2003)
followed in this case, which mandates notice and an adversary                    (applying this standard of review to obstruction of justice
hearing. Even so, the Rule 42(a) procedure is “pretty                            enhancement under U.S. Sentencing Guidelines).
summary,” United States v. Oberhellman, 946 F.2d 50, 52
(7th Cir. 1991), since the offended judge may initiate the                          Two Supreme Court decisions provide important guidance.
proceeding without indictment, may impose sentence on the                        In Ex parte Hudgings, 249 U.S. 378 (1919), the Court granted
convicted contemnor, and, in a nonjury case like this one,                       a writ of habeas corpus to a federal witness who had been
may try the case himself. For this reason, contempt liability                    imprisoned for contempt after giving implausible testimony
under Rule 42(a) should be “circumscribed as narrowly as is                      that he could not verify the handwriting of his own business
consistent with the maintenance of order and decorum                             partners. The Court held that “in order to punish perjury in
essential to the effective operation of the judicial system.” Id.                the presence of the court as a contempt there must be added
at 53.                                                                           to the essential elements of perjury . . . the further element of
                                                                                 obstruction to the court in the performance of its duty.” Id. at
  A witness’s misconduct must “obstruc[t] the administration                     383 (emphasis added). Cautioning against “mistakenly
of justice” in order to be punishable as contempt. 18 U.S.C.                     attribut[ing] a necessarily inherent obstructive effect to false
§ 401(1); Vaughn, 752 F.2d at 1167. Arredondo’s main                             swearing,” it emphasized the “potentiality of oppression and
argument for reversal is that even if he gave knowingly false                    wrong” that would arise if courts could summarily punish
oral and written testimony in support of his Section 2255                        witnesses for giving testimony with which the court
petition, this was legally insufficient under the circumstances                  disagreed. Id. at 384.
here to constitute an obstruction of justice under § 401. We
                                                                                   The Court reaffirmed Hudgings in In re Michael, 326 U.S.
                                                                                 224 (1945), upon which Arredondo principally relies. A
49 (1941) (reversing contempt conviction of petitioners who used liquor
                                                                                 grand jury subpoenaed Michael, a bankruptcy trustee, to
to coerce an infirm, elderly man into filing letters in federal district court   testify about numerous checks that had been written from the
seeking to dismiss the man’s civil action against petitioners’ friend;           bankrupt’s assets. He gave direct, unequivocal responses to
coercive actions took place over 100 miles from the district court). It may      questions before the grand jury, but the district court found
be questioned whether Arredondo’s filing of false affidavits was                 that his answers were lies.7 The lower courts held Michael
sufficiently “near” the district court to be punished as contempt. Our
precedents suggest that the answer depends on whether the court was then
                                                                                 guilty of contempt, reasoning that he had “block[ed] the
in session. See Schmidt v. United States, 124 F.2d 17 7, 177 (6th Cir.           inquiry” of the grand jury by giving false testimony about the
1941) (holding that defendant’s filing of false papers with clerk could not      purposes of the checks. Id. at 229. The Supreme Court
be punished as contempt, “since it does not appear that the court was in
session at the time.”).
     Neither party has disc ussed this issue. W e need not resolve it,                7
because in the evid entiary hearing that followed our first remand,                     Indeed, the facts given by the Supreme Court and in the lower
Arredondo orally repeated in the presence of the court the allegations           court’s opinion, 14 6 F.2 d 62 7 (3d Cir. 194 4), suggest that M ichael’s
contained in his written affidavits. We will assume without deciding that        falsifications may ha ve be en self-serving. T he grand jury summ oned him
Arredon do’s affidavits were also given “in or near” the court’s presence,       in the course of “a general investigation of frauds against the United
because as discussed below, they nevertheless fall outside the scope of          States.” Mic hael, 326 U.S. at 226. If the bankrupt’s assets were being
contempt liability, as they d id not obstruct justice within the meaning of      dissipated for imp roper purposes, then Michael might have faced
§ 401.                                                                           indictm ent.
No. 02-1394                      United States v. Arredondo           11     12     United States v. Arredondo                          No. 02-1394

unanimously reversed. It emphasized that the natural                            Michael and Essex together make clear that “false
tendency of all false testimony is to mislead the finder of fact,            testimony alone,” whether written or oral, “will not amount to
but this does not, as such, render it contemptuous:                          contempt of court.” Ibid. The government argues that several
                                                                             grounds distinguish Arredondo’s conduct from the conduct at
  All perjured relevant testimony is at war with justice                     issue in Michael and Essex. Upon consideration, however,
  since it may produce a judgment not resting on truth.                      we must reject each of these arguments for upholding
  Therefore it cannot be denied that it tends to defeat the                  Arredondo’s contempt conviction.
  sole ultimate objective of a trial. It need not necessarily,
  however, obstruct or halt the judicial process. For the                       First, the government argues that because Arredondo’s false
  function of trial is to sift the truth from a mass of                      allegations concerned the performance of his attorney in his
  contradictory evidence, and to do so the factfinding                       criminal trial, they obstructed the operation of the justice
  tribunal must hear both truthful and false witnesses.                      system in a way that routine perjuries do not. While the
                                                                             government cites no authority for this proposition, the
Id. at 227-28.                                                               Supreme Court upheld a contempt conviction for false
                                                                             swearing under a somewhat similar theory in Clark v. United
  We applied Michael in United States v. Essex, 407 F.2d 214                 States, 289 U.S. 1 (1933). Clark was a venire member who
(6th Cir. 1969), to reverse the obstruction of justice                       lied her way on to the jury with representations that she was
conviction of a witness who had filed a perjured affidavit.                  unbiased, despite the fact that she was an ally of the defendant
After the trial court disbelieved Essex’s written testimony that             who would have voted for an acquittal regardless of the
she had sexual relations with several jurors in the trial of                 evidence. Id. at 8-11. The Supreme Court held that she had
Jimmy Hoffa, see United States v. Hoffa, 247 F. Supp. 692                    “trifled with the court of which she was a part, and made its
(E.D. Tenn. 1965) (denying Hoffa a new trial), she was                       processes a mockery,” which was “contempt, whatever else
prosecuted and convicted under the federal obstruction of
justice statute, 18 U.S.C. § 1503. Essex, 407 F.2d at 215-16.
We noted that §1503 had grown out of the same 1831 act as
the federal contempt statute, 18 U.S.C. § 401, and therefore                 “corruptly . . . influenc[ing], obstruct[ing], or imped [ing], or
concluded that the dispositive issue was whether Essex’s “act                endeavor[ing] to influence, obstruct, or impede, the due administration of
of filing a false affidavit . . . constitute[d] a contemptuous act           justice.” 18 U .S.C. § 150 3(a).
within the meaning of . . . § 1503.” Essex, 407 F.2d at 217.                      The difference in language suggests that § 1503 may have a broader
                                                                             reach than § 401. Moreover, assigning a wider scop e to § 150 3 liability
We held that it did not. Ibid.8                                              raises no procedural or separation of powers concerns, because a violation
                                                                             of § 1503 cannot be punished using the summary contempt mechanisms
                                                                             of Fed. R. Crim. P. 4 2. See Griffin , 589 F .2d at 205 -06. Instead, a
    8
                                                                             prosecution must be initiated by indictment and the case must be tried
      As the Fifth Circuit has observed, it may be questionable whether      before a new judge. Accordingly, we have “severely limited” Essex’s
Essex correctly interpreted the scop e of 18 U .S.C. § 150 3. See United     holding in subsequent § 150 3 cases. United States v. Co llis, 128 F.3d
States v. Griffin, 589 F.2d 20 0, 204-06 (5 th Cir. 1979). Essex used the    313, 318 (6 th Cir. 1997) (upholding § 1503 co nviction of prisoner who
Suprem e Court’s § 401 contempt cases to interpret § 150 3, see 407 F.2d     submitted a fabricated letter attesting to his good character in an attempt
at 217 -18, yet the operative provisions of these two statutes are not the   to influence his sentencing hearing).
same. Section 40 1(1) prohibits misbehavior that “obstruct[s] the                 Neve rtheless, these criticisms o f Essex do not extend to the § 401
administration of justice.” 18 U.S.C. § 40 1(1); see also Vaughn, 752 F.2d   context. Essex remains instructive authority on the scope of contempt
at 116 8. Section 1 503 prohibits, am ong o ther kind s of conduc t,         liability in this circuit.
No. 02-1394                 United States v. Arredondo      13    14       United States v. Arredondo                        No. 02-1394

it may be besides.” Id. at 12. However, Clark and its             court proceeding that likewise would have been premised on
progeny, e.g., In re Brogdon, 625 F. Supp. 422 (W.D. Ark.         falsehood. Yet we held that Essex’s conduct was not “a
1985) (upholding contempt conviction of juror who lied about      contemptuous act,” and we take the same view of
his bias and prior knowledge of events at trial), are             Arredondo’s conduct here. Essex, 407 F.2d at 218.
distinguishable from Arrendondo’s case.            Jurors and
veniremen are officers of the court. Their conduct is               Finally, the government suggests that Arredondo’s false
governed by a separate section of the federal contempt statute,   statements are contemptuous because they were not merely
18 U.S.C. § 401(2) (prohibiting “misbehavior” by a court          false, but “blatant fabrications.” The district court also
officer), as well as the generally applicable contempt            appears to have taken this view. Courts may indeed punish as
provision of 18 U.S.C. § 401(1). Here, Arredondo was only         contempt testimony that is “a mere sham.” United States v.
a party, not an officer of the court. Clark is also               Appel, 211 F. 495, 497 (S.D.N.Y. 1913) (L. Hand, J.); see
distinguishable from Arredondo’s case in that Clark’s             Hudgings, 249 U.S. at 383 (approving Appel); Collins v.
falsehoods interfered with the machinery of the very trial in     United States, 269 F.2d 745 (9th Cir. 1959). A witness’s
which she participated. As the Supreme Court later                refusal to respond to questions is a classic form of contempt.
explained, Clark’s perjury “prevent[ed] the . . . formation of    United States v. Seavers, 472 F.2d 607, 611 (6th Cir. 1973).
a proper judicial tribunal.” Michael, 326 U.S. at 228. In         By extension, an answer patently false on its face is
contrast, while Arredondo’s falsehoods could be said to be        equivalent to a refusal to testify and may be similarly
about the “administration of justice,” 18 U.S.C. § 401,           punished.9 However, “this power must not be used to punish
inasmuch as the subject matter of his testimony and his           perjury.” Appel, 211 F. at 496. To prevent the exception
Section 2255 petition was the supposed ineffective assistance     from swallowing the rule, courts employ a technical
rendered by his counsel in an earlier court proceeding, his       distinction: testimony is not a contemptuous sham unless the
falsehoods did not interfere with the administration of justice   court can take “judicial notice” of its falsity, see, e.g., Harbor
in his Section 2255 proceeding, aside from the necessary          Tank Storage Co. v. De Angelis, 204 A.2d 13, 17 (N.J. Super.
obstructive effect exercised by all false testimony. As           App. Div. 1964), or, put differently, unless the falsity is
Michael makes plain, that is not enough for contempt.             apparent without reference to extrinsic evidence in the record.
                                                                  The test is whether “on its mere face, and without inquiry
  Second, the government seeks to distinguish Michael on the      collaterally,” the testimony is “not a bona fide effort to
ground that Arredondo was not, like Michael, a passive            answer the questions at all.” Michael, 326 U.S. at 228-29
witness called to the stand. Instead, Arredondo gave his false    (quoting Appel, 211 F. at 496).
testimony in a postconviction proceeding that he himself had
initiated. The government therefore argues that Arredondo’s
act of filing a Section 2255 petition substantially premised on
false accusations suggests a degree of willful interference            9
                                                                        As Judge Hand put it: “It could not be enough for a witness to say
with the judicial process greater than the typical episode of     he did not remember where he had slept the night before, if he was sane
perjury. We acknowledge the inherent plausibility of this         and sobe r, or that he cou ld not tell whether he had been married more than
argument. However, it cannot be squared with our decision         a week.” Appel, 211 F. at 495-96; In re We iss, 703 F.2d 6 53, 663 (2d Cir.
in Essex. After all, Essex submitted her false affidavit in       1983) (characterizing such responses as a “middle category of testimonial
support of Hoffa’s motion to secure a retrial. If the court had   obd uracy” between perjury and refusal to respond). An answer need not
                                                                  be evasive to be punishable. “On Venus” would also be a contemptuous
believed her, it might have ordered a lengthy, costly new         response to the question of a party’s whereabouts the night before.
No. 02-1394                  United States v. Arredondo       15    16   United States v. Arredondo                  No. 02-1394

   By this standard, Arredondo’s testimony, though weak, was        “testimony of other witnesses,” Michael, 329 U.S. at 229, his
not a contemptuous sham. His testimony about Plachta’s              conduct does not fall under the Appel exception.
failure to convey the first plea offer certainly was not false on
its face. The district court faced a significant evidentiary           Arredondo’s false testimony was harmful. It compelled the
conflict about this matter, which it resolved against               expenditure of scarce judicial resources in the district court
Arredondo. The question is closer with respect to                   and in this court to analyze his allegations, and it threatened
Arredondo’s testimony about Plachta’s failure to pass on the        unwarranted professional discipline of an attorney. It was
(nonexistent) second plea offer. His original affidavit that        also self-serving: Arredondo sought to wangle relief from a
stated that Arredondo had seen Plachta and Hluchaniuk               sentence duly imposed on him for serious drug crimes. We
talking on the day of trial and that Plachta had shaken his         are sympathetic to the district court’s view that Arredondo’s
head “no.” After the court rejected Arredondo’s petition, he        false testimony had a sufficiently unusual obstructive effect
filed a new affidavit with his motion for reconsideration, to       to justify a finding of contempt. Indeed, the district court’s
which he added an assertion that he had overheard relevant          decision appears have been guided in part by dicta in our own
snippets of the supposed plea conversation, and that                prior opinion in this case. See Arredondo, 177 F.3d at 790
Hluchaniuk had shaken his head “no.” It is hard to see why          (stating that “courts should not . . . refus[e] to punish
these significant facts were not included in the original           demonstrably false claims of ineffective assistance of
affidavit. The district court correctly noted that Arredondo’s      counsel.”). However, after full briefing and argument on the
oral testimony in the Section 2255 hearing was evasive, and         issue, we conclude that contempt liability cannot be imposed
his own statements on this issue cast grave doubt on the truth      in this case, consistently with a fair reading of Michael and
of his assertions. Nevertheless, the second affidavit (and          Essex. It remains open for “courts . . . to punish” such false
Arredondo’s corresponding oral testimony at the Section             claims by means of a perjury prosecution.
2255 hearing) was not patently false on its face. There were
inconsistencies between the two affidavits, which properly                                        IV
influenced the district court’s decision to reject Arredondo’s
claims, but not the sort of blatant contradiction that might          For the foregoing reasons, Arredondo’s conviction for
permit a contempt finding. Cf. Collins, 269 F.2d at 751             contempt is REVERSED and the denial of his petition for
(affirming contempt conviction where witness told grand jury        postconviction relief from his sentence is AFFIRMED.
three different, contradictory stories about his role in a murder
and burglary). Moreover, Arredondo’s testimony as to the
crucial issue in the case – the handling of the plea offer or
offers – does not appear clearly false until placed in the
context of the other testimony. If Assistant United States
Attorney Hluchaniuk had testified, for example, that he did
make a second plea offer to Plachta on the day of trial, while
Plachta denied it, then the factfinder might have hesitated to
hold that Arredondo fabricated his testimony about Plachta’s
handling of that offer. Since the falsity of Arredondo’s
testimony cannot be plainly established without invoking the
