                        REVISED - June 28, 2000

                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                             No. 99-11269




                      IN RE: DOUGLAS C. GREENE,

                                                           Appellant.




            Appeal from the United States District Court
                 For the Northern District of Texas

                             May 26, 2000

Before REAVLEY, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM:

     Douglas Greene is an Assistant Federal Public Defender who

appeals from $300 in sanctions entered against him by Judge John

McBryde.    Because the record does not support the sanctions order,

we vacate and render.

                                  I.

     This is a classic case of a judge making a mountain out of a

molehill.    On the day in question, Judge McBryde began calling his

arraignment docket at 9:00 a.m.        Greene represented a defendant

scheduled for arraignment before Judge McBryde that morning but his
secretary had mistakenly listed the arraignment on Magistrate Judge

Charles Bleil’s docket for 9:30 a.m. When Greene was informed that

the arraignment was before Judge McBryde, he rushed into Judge

McBryde’s courtroom, arriving at 9:10 or 9:12 a.m.                     Mr. Greene

apologized and explained his reason for being late.              Judge McBryde

announced   his    intent   to    immediately    try    Greene   for     criminal

contempt.     The judge denied Greene’s motion for continuance and

proceeded to hold Mr. Greene in contempt and fined him $150.                After

taking a guilty plea, Judge McBryde then returned to Greene’s

contempt citation. Greene reiterated his request for a hearing and

for permission to call his secretary to corroborate that she had

erroneously      recorded   Mr.     Greene’s    court     appearance       before

Magistrate Judge Bleil at 9:30.         Judge McBryde then permitted Mr.

Greene to call his secretary, Ms. Castro.                  Ms. Castro fully

corroborated Greene’s earlier statement that she had erroneously

placed the rearraignment on the calendar as being before Judge

Bleil   rather    than   Judge    McBryde.      Greene    and    his    secretary

explained that the calendar mistake was due in part to the fact

that Judge McBryde had only recently resumed handling criminal

cases following a one year suspension of his criminal docket as a

result of Circuit Judicial Council sanctions against Judge McBryde.

     During the course of the hearing, which lasted approximately

an hour and a half, Judge McBryde became interested in whether a

letter from the Department of Justice advising of the date of the

rearraignment was the top item under the ACCO fastener in Mr.

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Greene’s file.   Mr. Greene initially stated that the top item was

a copy of some sort of docket sheet.   When Judge McBryde questioned

the accuracy of this statement, Mr. Greene stated “but I am not

trying to disagree with what the document was in the file.    I don’t

know where it was.   I don’t recollect it was on top.   It could have

been.    I don’t know.   I am not trying to pull a fast one on Your

Honor.   I was just pulling it out because you asked me to show it

to Ms. Castro and that’s what I was getting ready to do.”      Judge

McBryde concluded that Mr. Greene had misrepresented to him the

location of the Department of Justice letter in his file. Judge

McBryde characterized this incident as follows:

     That is dishonest conduct that should not be engaged in
     by any attorney, whether from the United States
     Attorney’s Office or in private practice or the Federal
     Public Defender’s Office or anybody else’s office. It’s
     deceptive conduct to mislead the Court and was done
     directly in my view, as if you had such little respect
     for the Court that I wouldn’t be able to see what was
     going on from here to the counsel table.

     Following the hearing, Judge McBryde dictated findings in the

record and adjudged Mr. Greene guilty of two counts of contempt:

one for being 12 minutes late for the hearing and the other for

misrepresenting the location of the Department of Justice letter in

his file.    Four days later Judge McBryde issued a written order

withdrawing his earlier judgment of contempt and concluding that it

would be more appropriate to discipline Mr. Greene under Local




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Criminal Rule 57.8(b).1    As a result, Mr. Greene had no opportunity

to respond to the sanction issued under the court’s local rule.

                                      II.

      Mr. Greene raises a number of serious issues on appeal.            He

argues that he received inadequate notice to adequately prepare a

defense to the contempt charge.        He admittedly received no notice

of the judge’s intent to sanction him under the court’s local

rules.     He also argues that Judge McBryde should have recused

himself in view of the judge’s biased attitude toward him in this

case and his conflict with the Federal Public Defender’s Office

arising out of lawyers in that office testifying in the Judicial

Council proceeding against Judge McBryde.

      Too much time and effort has already been spent on this case

and we need not consider these arguments.              We have carefully

reviewed   the   record   in   this   case   which   demonstrates   without

contradiction that Mr. Greene had a plausible reason for being 10-

12 minutes late for his hearing: his secretary erroneously recorded

on Mr. Greene’s calendar that the appearance was before a different

judge.     This error was caused in part by the fact that Judge

  1
   The Northern District of Texas Rule 57.8(b) provides: “A
presiding judge, after giving opportunity to show cause to the
contrary, may take any appropriate disciplinary action against a
member of the bar for: (l) conduct unbecoming a member of the bar;
(2) failure to comply with any rule or order of this court; (3)
unethical behavior; (4) inability to conduct litigation properly;
(5) conviction by any court of a felony or crime involving
dishonesty or false statement; or (6) having been publicly or
privately disciplined by any court, bar, court agency or
committee.”

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McBryde had only recently resumed handling a criminal docket. There

is no evidence that Mr. Greene had ever been late for a previous

court appearance.   The record supports no finding that Greene was

in bad faith.    See In re Royal D. Adams, 505 F.2d 949 (5th Cir.

1974); United States v. KS&W Offshore Engineering, Inc., 932 F.2d

906 (11th Cir. 1991); United States v. Maynard, 933 F.2d 918 (11th

Cir. 1991).      At most, Mr. Greene deserved an admonition about

checking his calendar and being on time; but criminal contempt

should not have been on the judge’s radar screen for this minor

infraction.    Rather, the record clearly demonstrates that he made

an innocent, completely understandable, mistake.   As the Eleventh

Circuit stated in KS&W Engineering: “When an attorney fails to

appear or makes a delayed appearance, however, the conduct which is

subject to sanction is not the absence itself but the failure to

provide sufficient justification for the absence or delay.”    932

F.2d at 909 (citing United States v. Nunez, 801 F.2d 1260 (11th

Cir. 1986)).

     With respect to Greene’s statement concerning the Justice

Department letter, the record reveals that Greene was uncertain

about its location in his file and justifiably bewildered about

Judge McBryde’s intense interest in such a peripheral point.   The

record does not support a conviction for criminal contempt arising

out of this exchange between Greene and Judge McBryde.

     As for the court’s post hoc substitution of a sanction under

the Court’s Local Rule instead of contempt, Mr. Greene never had

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notice or an opportunity to be heard and contest the disciplinary

action under the Local Rule.   We conclude, however, that no remand

is necessary for a further hearing regarding such a trivial matter.

We are satisfied from the detailed record already made that the

facts of this case do not warrant imposition of sanctions.

     For the reasons stated above, the sanctions award is vacated

and judgment is rendered in favor of appellant.

     VACATED and RENDERED.




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