                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                MAY 25 2001
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 DERRICK R. PARKHURST,

           Plaintiff-Appellant,
 v.
                                                              No. 00-8013
                                                         (D.C. No. 94-CV-219)
 UNITED STATES DEPARTMENT OF
                                                         (District of Wyoming)
 EDUCATION,

           Defendant-Appellee.




                                  ORDER AND JUDGMENT*


Before BRISCOE, PORFILIO, and LUCERO, Circuit Judges.




       After examining the briefs and appellant record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.




       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       This appeal calls upon us to determine the validity of an order of the district court

finding pro se litigant, Derrick R. Parkhurst, in criminal contempt and sentencing him to

90 days’ incarceration. We conclude Mr. Parkhurst’s conduct was contumacious, and the

penalty summarily imposed by the court is affirmed.

       While serving a life sentence at the Wyoming State Penitentiary, Mr. Parkhurst

brought this pro se action against the Department of Education in August 1994. Pretrial

motions and discovery consumed five years, but the case was finally set for trial on

January 18, 2000. Six days before trial, after already having a previous trial date vacated

at his request, Mr. Parkhurst filed another motion to reschedule trial on the ground he

might be “professionally evaluated” in connection with an attempted escape charge at the

Wyoming State Penitentiary. In its order entered the next day, the court discounted the

validity of Mr. Parkhurst’s claim. Plaintiff was transported to Casper for the trial. After

calling the case for a bench trial, the court asked Mr. Parkhurst if he had any testimony, to

which Mr. Parkhurst answered, he was not ready to proceed to trial, claiming he did not

“have any of [his] notes or anything.”

       When asked by the court why he did not bring his “notes” when he left for court,

Mr. Parkhurst stated, “[b]ecause I didn’t know where I was going.” This response

prompted the court to ask, “Are you telling me you didn’t have a clue, when you were

being brought to Casper, that you were coming up here for this trial? You knew the date

of the trial, didn’t you?” Mr. Parkhurst replied that he knew about the trial date, but when


                                            -2-
he was taken from the penitentiary, he thought he was “going to Evanston” for a “mental

evaluation.” When the court asked who ordered the “mental evaluation,” Mr. Parkhurst

replied, “the county judge down in Rawlins.”

       Obviously disturbed by this turn of events, the court stated:

       I’m counting to ten slowly. Mr. Parkhurst, you better be telling me the
       truth, [be]cause if you’re not you’re going to get the butt-blistering of your
       life from me. I give a verbal tongue lashing like none you’ve ever had. If I
       find out you’re lying to me, I’ll hold you in criminal contempt of court.

Mr. Parkhurst then responded, “You’re welcome to.” A brief exchange ensued in which

the court attempted to gain control of what the record clearly indicates was the

deterioration of the courtroom decorum. During this exchange, Mr. Parkhurst said to the

court, “to hell with you,” and refused to stand to address the bench. Finally, order was

restored after a marshal stood behind Mr. Parkhurst and he rose to his feet.

       The court then asked, “[A]re you telling me you did not believe you were to be

here for trial today? Is that your comment to me?” “No. I didn’t think I was coming up

here for trial. I thought I was going to Evanston,” answered Mr. Parkhurst.

       Stating he intended to “go to the bottom of this,” the court ordered Mr. Parkhurst

returned to detention in the courthouse and directed the marshal to contact state prison

officials to learn whether Mr. Parkhurst had been told he was going to Casper for trial.

The court recessed the proceedings, but appointed counsel to advise Mr. Parkhurst of the

possibility of a direct criminal contempt and what to do to avoid imposition of the

penalty.

                                            -3-
       Later that day, the court reconvened and heard prison officers testify by telephone

that Mr. Parkhurst had been told on January 13 he was being transported to Casper.

Although there was some uncertainty over whether Mr. Parkhurst was specifically

instructed to take his notes for trial, each prison official related his conclusion Mr.

Parkhurst knew he was going to Casper and not Evanston. The officers who transported

Mr. Parkhurst and their lieutenant stated when Mr. Parkhurst was told he was going to

Casper for trial, he refused to go. After the lieutenant advised the officers Mr. Parkhurst

had no choice in the matter because the district court had issued a writ of habeas corpus

ad testificandum, they proceeded to deliver Mr. Parkhurst to Casper.

       Although Mr. Parkhurst was not given the opportunity to call his own witnesses,

he testified and stated the officers had lied. When given the opportunity to cross-

examine those officers, Mr. Parkhurst declined, admitting he knew he was told he was

going to Casper, but was not told the reason for the trip. He claimed he was confused

because he had recently suffered a stroke which required him to have a mental

competency evaluation at the Wyoming State Hospital in Evanston.

       At that point, the Assistant United States Attorney who was representing the civil

defendant addressed the court recounting the delays counsel had encountered trying to get

the civil case to trial. She added:

       [It] appears that he’s toying with the system, and it’s costing considerable
       time and expense. Today is the day when he is supposed to present his
       case; and since he’s not prepared to do that, it would be the defendant’s
       position that the case should be dismissed with prejudice by default.

                                             -4-
That motion was taken under advisement.1

       Invited to speak before the court’s ruling, Mr. Parkhurst said he was not sure what

was said that morning but insisted he was not toying with the court. He apologized, as

did counsel who had been appointed earlier in the day to advise Mr. Parkhurst in the

contempt matter. Counsel also asked the court to be lenient.

       From the bench, the court found Mr. Parkhurst in contempt, stating: “As for the

direct criminal contempt, sir, it is the sentence of the Court that you be confined in a

United States Bureau of Prisons facility to serve a term of 90 days for contempt.”

(emphasis added). In a subsequent written order, the court particularized its findings and

held Mr. Parkhurst had delayed the civil trial by “refusing to stand when addressing the

Court and otherwise refusing the instruction of the Court,” and by making “derogatory

comments to the Court, including telling the Court ‘to hell with you.’” On the basis of

these findings, the court concluded Mr. Parkhurst committed a criminal contempt

“pursuant to Fed. R. Crim. P. 42(a),” and imposed sentence under 18 U.S.C. § 401 of

ninety days to be served consecutive to his life term.

       On appeal Mr. Parkhurst challenges the validity of the sentence, contending the

flaws in this conviction are threefold. First, although the court found Mr. Parkhurst’s



       1
        From the record before us, it appears the district court did not rule on this motion.
Instead, on March 19, 2001, the court dismissed the action on the grounds of mootness.
The order of dismissal was transmitted to this court and made part of our record on
March 22, 2001.

                                             -5-
behavior obdurate, it did not take immediate action and even alluded to the possibility Mr.

Parkhurst could remedy his situation by improving his conduct. Second, he contends the

court acted as both prosecutor and judge, eliciting testimony from prison officers, and

deciding, without allowing Mr. Parkhurst to call witnesses, he had lied. Third, if Fed. R.

Crim. P. 42(b) was the basis for the hearing, Mr. Parkhurst contends due process then

attached to the proceeding, requiring he be given notice, an opportunity to prepare a

defense and to call witnesses. Additionally, he maintains despite the court’s knowing

about an imminent mental competency evaluation, it proceeded, without benefit of that

record, to determine Mr. Parkhurst’s competence. Given the government’s burden to

prove Mr. Parkhurst acted willfully and with specific intent to flaunt the court’s power, he

urges the court erred.

       Dealing with these issues first requires a correct posturing of the case. What we

have before us is truly a hybrid containing some of the aspects of criminal contempt and

some of the aspects of civil contempt. Further complicating the issues, those parts of this

case containing the elements of criminal contempt also boast of both direct and indirect

contempt. We must, then, establish the nature of all these elements.

       First, “criminal contempt [is] ‘a crime in the ordinary sense’ and requires that the

contemnor be afforded fundamental procedural safeguards.” Young v. United States, 481

U.S. 787, 795-96 (1987). However, those procedures for prosecuting a criminal contempt

differ depending on whether the conduct constitutes direct or indirect contempt. Id. at


                                            -6-
798. Direct criminal contempt consists of contumacious conduct committed in the

presence of the court. Fed. R. Crim. P. 42(a). An indirect criminal contempt consists of

contumacious conduct directed to the court but not committed in its presence. Chief

Justice Burger has observed that indirect criminal contempt is “intentional obstructions of

court proceedings that literally disrupted the progress of the trial and hence the orderly

administration of justice,” even if not delivered disrespectfully. United States v. Wilson,

421 U.S. 309, 315-16 (1975). Direct criminal contempt is not so limited. “All that is

necessary is that the judge certify that he ‘saw or heard the conduct constituting the

contempt and that it was committed in the actual presence of the court.’” Id. at 315,

quoting Fed. R. Crim. P. 42(a).

       The initial distinction between direct and indirect criminal contempt, then, is

whether the contumacious acts are committed before the court. While direct contempt

can be dealt with summarily by the offended court, In re Oliver, 333 U.S. 257, 275

(1948); Bloom v. Illinois, 391 U.S. 194, 203-04 (1968), Fed. R. Crim. P. 42(a); indirect

contempt must be proved through the testimony of third parties or a contemnor.

Moreover, the conduct giving rise to an indirect contempt does not “threaten[] a court’s

immediate ability to conduct its proceedings.” International Union, UMWA v. Bagwell,

512 U.S. 821, 826 (1994). For that reason, indirect criminal contempt may not be

punished summarily and “more normal adversary procedures” are required. Young, 481

U.S. at 798. In addition, if the contumacious conduct “involves disrespect to or criticism


                                            -7-
of a judge, that judge is disqualified from presiding,” at the contempt hearing unless the

accused consents. Fed. R. Crim. P. 42(b).

       Finally, civil contempt consists of contumacious conduct which results in

detriment to another party in a civil proceeding. “[T]he paradigmatic civil contempt

sanction is coercive, designed to exact compliance with a prior court order,” United

States v. Perry, 116 F.3d 952, 954 (1st Cir. 1997), in which correction usually takes the

form of granting appropriate relief to the injured party. By contrast, punishment for

criminal contempt is imposed to vindicate the court’s dignity.

       After viewing the record, we believe the district court recognized the different

forms of contempt. Even though it did not declare its understanding of these distinctions

in specific terms, the court properly made dispositions of the case nonetheless.

       From the outset, we must disagree with Mr. Parkhurst’s basic premise. He implies

that because the court heard testimony to determine whether he had lied to the court, the

proceeding had to involve indirect criminal contempt. While the progression of events in

the district court lends facial credence to the argument, we believe the ultimate

determination turns upon the district court’s definition of the contumacious conduct.

Although we recognize our selection of this analytical course is unusual, it is necessary to

put this singular case into proper focus.

       The district court, in its obvious and understandable frustration with Mr. Parkhurst,

was not absolutely clear in the rulings made during the course of events, and rulings it


                                            -8-
could have made consistent with the facts were not made. Yet, a fair look at what

actually occurred overcomes the record deficiencies.

       When that look is taken, we immediately see the holding of Mr. Parkhurst in

criminal contempt was not based upon his lie, which was the subject of the afternoon

hearing, but upon his verbal abuse of the court and his manifest disdain for the court’s

authority earlier in the day. Furthermore, it can be seen from the record the court’s

concern over whether Mr. Parkhurst truthfully explained his inability to proceed to trial

was directed not to the dignity of the court but to the civil defendant’s right to a final

disposition of that proceeding. Indeed, addressing the government’s motion to dismiss,

the court stated:

       I’m obligated to recognize the degree of actual prejudice to the
       [government], the amount of interference with the judicial process, which in
       this case appears substantial; and the culpability of the litigant which, given
       the testimony of the officers of the Wyoming State Penitentiary, in the
       opinion of this Court is compelling.

We thus believe the district court had differentiated in its mind between the disrespectful

and defiant conduct committed in its presence and the conduct which resulted in the

detrimental attempt to further delay the progress of the civil trial. In that differentiation,

the court made apparent the grounds for the criminal contempt were not connected to the

latter attempt.

       Within that framework, then, we believe the telephone hearing undertaken by the

court was not governed by the requirements of Rule 42(b) because the court was not


                                              -9-
attempting to determine whether Mr. Parkhurst had committed a criminal contempt by

lying. Notwithstanding his own statement, “[i]f I find out you’re lying to me, I’ll hold

you in criminal contempt of court,” it is evident, even after finding Mr. Parkhurst lied, the

court concluded the lie was not grounds for criminal contempt. Indeed, the written order

in which the court found Mr. Parkhurst in criminal contempt is totally silent on the issue

of the lie.

        Having properly postured the case, we turn to the substance of the appeal and

whether the court correctly punished Mr. Parkhurst for a direct criminal contempt. We

review a district court’s summary order of criminal contempt for an abuse of discretion

and its underlying factual findings for clear error. Perry, 116 F.3d at 957. “Summary

contempt procedures should be employed only after careful consideration and with good

reason.” United States v. Engstrom, 16 F.3d 1006, 1010 (9th Cir. 1994). However,

“summary” does not only mean immediate and refer only to the court’s timing. Sacher v.

United States, 343 U.S. 1, 9-11 (1952). A court does not “forego its authority to use

summary process by awaiting the completion of this final phase before imposing sentence

for the direct contempt that occurred in the court’s presence.” Perry, 116 F.3d at 956

(defendant urinated in the courtroom during the government’s closing argument.

Punishment was not imposed until after the jury returned a verdict.). We therefore

believe it insignificant that the district court waited until the conclusion of the afternoon

session to find him in direct criminal contempt. Moreover, based upon the patently


                                             - 10 -
contumacious acts which the court cited, we cannot say the finding of direct criminal

contempt was an abuse of discretion.

       Finally, Mr. Parkhurst contends, because criminal contempt must be proved

beyond a reasonable doubt, the court erred when it concluded he was mentally competent.

Our review of the record indicates the district court’s remarks directed to Mr. Parkhurst’s

competence related to his request for a delay of the civil trial and appointment of counsel

to represent him in that proceeding. In no way did the district court make a finding of

competence related to the criminal contempt. That is made further clear in the order

dismissing the civil action for mootness. For that reason, we find it unnecessary to deal

with the issue here.

       AFFIRMED.


                                          ENTERED FOR THE COURT


                                          John C. Porfilio
                                          Senior Circuit Judge




                                           - 11 -
00-8013, Parkhurst v. United States Department of Education

LUCERO, Circuit Judge, concurring.

      I concur in the opinion of Judge Porfilio. When Judge Downes sentenced

the appellant he said, “as for the direct criminal contempt, sir, it is the sentence of

the Court that you be confined in a United States Bureau of Prisons facility to

serve a term of ninety days for contempt” (emphasis added). I find no ambiguity,

or “bleeding-through” of indirect criminal contempt considerations in that clear

declaration of the trial court.

      In the court’s written order of February 2, 2000, the ninety-day sentence is

supported only upon the express findings that the appellant delayed the civil trial

when he “refus[ed] to stand when addressing the Court” and that the appellant

told the court “to hell with you.” Judge Downes did not rely on any other facts,

nor did he enter any sentence for indirect criminal contempt. I believe it

improvident to indulge the appellant’s invitation to speculate that the court did so.

      Any reference by the trial court to the hearing on indirect criminal

contempt is irrelevant because the court did not hold the defendant in contempt

for indirect conduct and did not sentence him for such conduct.
No. 00-8013, Parkhurst v. U.S. Department of Education

BRISCOE, Circuit Judge, dissenting:

       I respectfully dissent. Although I agree with the majority that the contemptuous

conduct the district court witnessed is punishable under Rule 42(a), I am unable to

determine whether Parkhurst's untruthfulness, which was provable only through witness

testimony and thus not punishable under Rule 42(a), see In re Oliver, 333 U.S. 257, 275

(1948), also provided a basis for the contempt order. I would remand to the district court

with directions to vacate and reconsider the contempt order.

       Rule 42(a) permits summary punishment for criminal contempt without notice or a

hearing when a trial judge certifies in a written order that he or she “saw or heard the

conduct constituting the contempt and that it was committed in the actual presence of the

court.” The majority admits that the district court did not comply with this express

requirement and explain in writing the factual basis for its contempt finding, see Majority

Op. at 8-9, but both the majority and concurring opinions conclude that this deficiency is

remedied by facts recited in the contempt order as well as by certain comments made by

the court during the contempt hearing, see Majority Op. at 9-10; Concurring Op. at 1. For

the reasons that follow, I cannot agree.

       First, the district court’s contempt order does not offer much clarification as to

why it found Parkhurst in direct criminal contempt. Although it recounts that Parkhurst

made the derogatory “to hell with you” comment and refused the court’s direction to

stand, the order does not, contrary to the suggestion of the majority and concurring
opinions, state that these particular events provided the actual basis for the finding of

contempt. Nor does the order state that the trial judge “saw or heard” these events as

expressly required by Rule 42(a). Instead, the order states only that “the basis for the

contempt citation” was given “on the record” at the contempt hearing. ROA Vol. 1, Doc

136 at 2.

       Second, reliance on “the transcript itself is insufficient to satisfy Rule 42(a).”

United States v. Mathews, 49 F.3d 676, 678 (11th Cir. 1995). While the transcript

reflects that the district court found Parkhurst in contempt for his “conduct in court th[at]

morning,” ROA Vol. 2 at 34, it does not clearly reflect whether the conduct the court

found contemptuous included Parkhurst’s lack of veracity, which was provable only by

witness testimony and thus could not be punished summarily. After all, the court

conducted a hearing on the issue of Parkhurst’s veracity after warning him: “If I find out

you’re lying to me, I’ll hold you in criminal contempt of court.” Id. at 5-6. Then, during

the hearing, the court informed Parkhurst of the penalties for criminal contempt and said

he could avoid “that kind of sanction in the next few minutes as this hearing proceeds” by

“exercising good judgment,” id. at 31-32, suggesting that the court did not intend to base

its contempt decision solely on Parkhurst’s behavior in court that morning. Finally, at the

end of the hearing, the court announced that Parkhurst’s testimony was “unbelievable”

shortly after finding him in criminal contempt. Id. at 37. Thus, far from making it

“immediately” apparent that the district court’s criminal contempt finding was based


                                             -2-
solely on Parkhurst’s “verbal abuse of the court and his manifest disdain for the court’s

authority earlier in the day,” Majority Op. at 9, the transcript can reasonably be read to

reflect that the district court based its criminal contempt finding at least in part on

Parkhurst’s lack of veracity.

       But more importantly, even if the transcript clearly reflected that the contempt

order was not based on Parkhurst’s untruthfulness, “a transcribed recitation of the basis

for the contempt finding cannot replace a certification by [the trial court] that [it] actually

witnessed the conduct.” Mathews, 49 F.3d at 678. Otherwise, “[a]llowing the transcript

to satisfy the certification requirement [of Rule 42(a)] would in effect eliminate the

requirement completely and dilute the procedural safeguards afforded those summarily

convicted of criminal contempt.” Id.; see also Widger v. United States, 244 F.2d 103,

107 (5th Cir. 1957) (cautioning that “courts proceeding summarily must be meticulously

careful to observe procedural safeguards”) (internal ellipses and quotations omitted). By

looking beyond the contempt order in this case and relying on the district court’s

comments during the contempt hearing, the majority and concurring opinions ignore this

basic procedural safeguard.

       Therefore, because the district court did not clearly set forth in writing the factual

basis for its contempt order as required by Rule 42(a), I would conclude that it abused its

discretion in entering that order. While there is little doubt we could affirm the contempt

order were it premised only upon Parkhurst’s verbal abuse and failure to follow the


                                              -3-
court’s instructions, I would decline to do so absent a clear indication that these acts

provided the sole basis for the court’s decision. See Crowe v. Smith, 151 F.3d 217, 240

(5th Cir. 1998) (“For this court to affirm . . . sanctions on grounds other than those

expressly chosen by the imposing court would constitute an encroachment upon that

court’s discretion unwarranted by the concerns for order and necessity inherent in their

use.”). Further, even if the contempt order was actually based on Rule 42(b), I would

accept the DOE’s implicit concession that the hearing did not comport with due process

requirements and assume without deciding that the district court committed plain error1

because it acted as judge, jury and prosecutor during the hearing and failed to give

Parkhurst notice or an opportunity to prepare a defense or call witnesses on his behalf. I

would remand to the district court with directions to vacate and reconsider the contempt

order.

         Finally, I disagree with the majority’s conclusion that we need not decide whether

the district court erred in finding Parkhurst mentally competent without a hearing simply

because the district court did not make an express “finding of competence related to the

criminal contempt.” Majority Op. at 11. In United States v. Crews, 781 F.2d 826, 833

(10th Cir. 1986), we held that when a district court orders a criminal defendant to stand

trial without making an express finding of competency, such an order constitutes an



       As Parkhurst candidly admits, the plain error standard applies to his Rule 42(b)
         1

argument because it was not raised in the district court. See United States v. McGuire,
200 F.3d 668, 671 n.2 (10th Cir. 1999).

                                             -4-
implicit finding that the defendant was competent and that such an order is reviewable on

appeal. Based on Crews, I would conclude that the district court’s entry of the contempt

order constitutes an implicit finding that Parkhurst was mentally competent to commit the

crime of contempt, and that the district court’s finding is reviewable by this court on

appeal. However, because I would remand to the district court with directions to vacate

and reconsider the contempt order, I would leave that issue for the district court to address

in the first instance on remand.




                                            -5-
