UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5411

LARRY R. LINNEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-95-34)

Argued: March 8, 1996

Decided: July 1, 1996

Before MURNAGHAN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished opinion. Senior Judge Butzner
wrote the opinion, in which Judge Murnaghan and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Philip Scott Anderson, LONG & PARKER, P.A., Ashe-
ville, North Carolina, for Appellant. Jerry Wayne Miller, Assistant
United States Attorney, Asheville, North Carolina, for Appellee. ON
BRIEF: Robert B. Long, Jr., Asheville, North Carolina, for Appel-
lant. Mark T. Calloway, United States Attorney, Asheville, North
Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

Larry R. Linney appeals the district court's entry of summary con-
tempt under Rule 42(a) of the Federal Rules of Criminal Procedure.
Because we find that Linney did not commit any acts of contempt
within the presence of the court--a prerequisite to a Rule 42(a)
hearing--we vacate the order of contempt and remand for a hearing
conducted pursuant to Rule 42(b).

I

In May 1994, Larry Linney was appointed counsel for Stevie
Twitty. Twitty was charged with conspiracy to possess with intent to
distribute cocaine and cocaine base. In November 1994, Linney was
elected to the North Carolina General Assembly, a position he
assumed in January 1995.

In the 12 months in which he represented Twitty, Linney did not
devote substantial resources to Twitty's case. He did not attempt to
conduct any discovery until three days before jury selection was to
begin, and he only filed one motion on behalf of Twitty--a motion
for the modification of Twitty's conditions of release.

On April 7, 1995, the court informed Linney that Twitty's case
would be called during the May 1, 1995, term of court. Jury selection
was scheduled for the morning of Monday, May 8, 1995. Prior to fil-
ing a motion for a continuance, Linney, confident that the case would
be continued, told his client not to appear in court on May 8. His cli-
ent, however, came after he phoned the clerk's office and learned that
he should appear.

At 3:10 p.m. on Friday, May 5, 1995, Linney filed a motion for
continuance and a motion for leave to withdraw from representation

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of his client. The district court's law clerk, after consulting with the
judge, advised Linney that both motions would be denied and that he
could voice any objections to these orders on May 8, when Linney
was to appear in court.

On May 8, at approximately 10:00 a.m., the district court called
Twitty's case for jury selection. Linney advised the court that he was
not prepared for trial. He also informed the court that he wished to
withdraw. He explained that the North Carolina legislature was at a
"critical moment." Linney also claimed a conflict of interest, alleging
that budget decisions he made as a state legislator affected the State
Bureau of Investigation, whose agents could be called as witnesses in
the case. Finally, Linney claimed that he had lost faith in the criminal
justice system because of the local district attorney's investigation of
him on "trumped up" charges. The May 8 appearance marked the first
time Linney made these arguments.

The district court denied Linney's motion for a continuance and
motion to withdraw. The court addressed Linney:"I expect you to be
present to participate in the selection of jury in the [Twitty] case."
Jury selection was scheduled to take place at approximately noon, fol-
lowing selection in another case.

The court then ordered a ten-minute recess before jury selection in
the first case was to begin. Attorneys were free to leave the courtroom
during the recess. As Linney left the courtroom and was walking
through a hallway outside the courtroom, he said:"You will have to
come and get me." A United States marshal heard this statement and
reported it to the district judge. Both parties agree that the judge did
not hear the statement.

At noon, the court called Linney's case for jury selection. Linney
was not present. The court then continued the case until 2:00 p.m. The
court's deputy clerk, not able to contact Linney by telephone, left a
voice mail message instructing him to appear at 2:00 p.m.

The court reconvened at 2:00, at which time Linney was still
absent. The district court then issued a warrant for his arrest and
ordered the marshal to direct law enforcement agencies to take Linney
into custody and to bring him before the court. Linney was arrested

                     3
in Raleigh, North Carolina, and was detained in the Wake County Jail
overnight. The following day, after the allowance of bail, Linney
returned to Asheville to appear before the court.

Linney appeared before the court with counsel, who had recently
been retained. Counsel requested that, pursuant to Rule 42(b) of the
Federal Rules of Criminal Procedure, the court give them notice of a
hearing and a reasonable time to prepare a defense to the charge of
criminal contempt. The court denied this request, stating that it was
proceeding under Rule 42(a): "the Defendant is not being heard under
42(b), the Defendant is being heard under 42(a), a summary contempt
for the direct violation of a court order."

In its summary contempt hearing, the court listened to Linney and
his attorney and asked Linney questions about his representation of
Twitty. The court then issued an order of summary criminal contempt.
It ordered Linney to reimburse the government for costs and expenses
due to the delay of the case and directed that Linney not be compen-
sated for any vouchers submitted in connection with the case. Finally,
the court disbarred Linney from practice before the United States Dis-
trict Court for the Western District of North Carolina.

II

Federal courts possess the power to impose sanctions for contempt
committed in or near the presence of the court. 18 U.S.C. § 401.
When invoking this power, courts must follow the procedures delin-
eated in Federal Rule of Criminal Procedure 42. Rule 42 provides two
types of contempt proceedings: (1) summary disposition, for con-
tempt occurring within the "actual presence" of the court, and (2) dis-
position upon notice and hearing, for other types of contempt.

Rule 42(a) provides: "A criminal contempt may be punished sum-
marily if the judge certifies that the judge saw or heard the conduct
constituting the contempt and that it was committed in the actual pres-
ence of the court. . . ." Courts should invoke Rule 42(a) only in "ex-
ceptional circumstances." Harris v. United States, 382 U.S. 162, 164
(1965) (citations omitted); In re Chaplain, 621 F.2d 1272, 1277 (4th
Cir. 1980). A court's power of summary contempt is one that "al-
ways, and rightly, is regarded with disfavor . . . ." Sacher v. United

                    4
States, 343 U.S. 1, 8 (1952). The Rule's narrow scope stems from the
consequences of summary contempt proceedings, which"allow the
court to punish without benefit of counsel, notice, jury, indictment, or
presentation of a defense." In re Heathcock , 696 F.2d 1362, 1365
(11th Cir. 1983). Exceptional circumstances allowing courts to apply
Rule 42(a) exist when "instant action is necessary to protect the judi-
cial institution itself." Harris, 382 U.S. at 167. Such situations include
threats to the judge, disrupting a hearing, or obstructing court pro-
ceedings. Id. at 164. Because of the narrow scope of Rule 42(a), the
"normal procedure" for conducting contempt prosecutions is under
Rule 42(b). Id. at 165.

The central issue in this appeal is whether Linney committed con-
tempt within the actual presence of the court. Because this calls for
a legal determination, we review the issue de novo. In this circuit,
"the failure [of an attorney] to appear as scheduled, if contumacious,
[is] not an act committed `in the actual presence of the court,' and
therefore not punishable summarily under Rule 42(a)." United States
v. Willett, 432 F.2d 202, 205 (4th Cir. 1970). Other courts have gener-
ally held that an attorney's absence from court, standing alone, is not
contempt in the presence of the court. See United States v. Nunez, 801
F.2d 1260, 1264 (11th Cir. 1986) (citing cases).

In certain instances, those in which the attorney informs the judge
that he will be absent for a particular reason, summary contempt may
be appropriate. For example, in United States v. Baldwin, 770 F.2d
1550, 1552 (11th Cir. 1985), the attorney told the court that he would
be absent from trial because of a Jewish holiday:"With all due
respect, Your Honor, I answer to a higher authority than this court in
this matter and I will not be here tomorrow." The Baldwin court's
imposition of summary contempt was upheld because of the attor-
ney's "prior refusal to obey the court's order and his explanation of
why he would not appear." Id. at 1556. But, the court continued,
"[m]ere failure to appear, without prior explanation, should not be
punished summarily." Id.

Linney appeared in court on May 8 at 10:00 a.m. He renewed his
motion for a continuance, stating his reasons, and asked to be allowed
to withdraw as Twitty's counsel. The court denied Linney's motions
and told him to appear for jury selection that morning. Linney did not

                     5
protest. He did not announce that he would be absent, nor did he
voice reasons why he would not be present.

Linney's comment when leaving the courtroom similarly did not
occur in the court's presence. At the time of the comment, the court
was in recess and attorneys were moving around, some stepping out-
side the courtroom. Linney, upon leaving the courtroom and passing
people in the hall, remarked: "You will have to come and get me." A
marshal overheard this remark. The judge did not.

Rule 42(a) applies only to conduct in the "presence of the court"--
conduct that the court "saw or heard" itself."Presence" does not
encompass remarks for which the judge must rely on third parties. See
United States v. Marshall, 451 F.2d 372, 373 (9th Cir. 1971). Because
the judge in this case did not hear Linney's remark and because he
had to rely on the testimony of a third party, the remark did not con-
stitute contempt in the actual presence of the court. We do not need
to decide whether Linney's comment was an act of contempt. We
decide only that such remark was not in the presence of the court.

The determination whether the attorney received Rule 42(b) proce-
dural safeguards depends on the facts of each case. Rule 42(b) pro-
vides:

          A criminal contempt except as provided in subdivision (a)
          of this rule shall be prosecuted on notice. The notice shall
          state the time and place of hearing, allowing a reasonable
          time for the preparation of the defense, and shall state the
          essential facts constituting the criminal contempt charged
          and describe it as such. The notice shall be given orally by
          the judge in open court in the presence of the defendant or,
          on application of the United States attorney or of an attorney
          appointed by the court for that purpose, by an order to show
          cause or an order of arrest. . . .

Rule 42(b)'s requirement of notice and time to prepare a defense con-
tributes to "procedural regularity," which"has been `a large factor' in
the development of our liberty." Harris, 382 U.S. at 167.

                    6
In this case, the district court did not provide the procedural prereq-
uisites required by Rule 42(b). In its summary contempt proceeding,
it allowed Linney and his attorney to speak. Yet it refused Linney's
attorney's requests for notice of the hearing, a reasonable time for
preparation of the defense, and a statement of the facts constituting
the criminal contempt charge. The impact of such procedural defi-
ciencies was compounded by the lack of time Linney's attorney had
to prepare a defense. The attorney was retained immediately prior to
the hearing and he did not have a chance to discuss the case with Lin-
ney prior to the hearing.

We vacate the order of summary criminal contempt and remand for
a hearing conducted pursuant to Rule 42(b).

VACATED AND REMANDED

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