     Case: 10-10350 Document: 00511432914 Page: 1 Date Filed: 04/01/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             April 1, 2011

                                       No. 10-10350                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

DONALD W. HILL, also known as Don Hill; RAY JACKSON,

                                                   Defendants - Appellants




                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:09-CR-299


Before KING, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Donald Hill and Ray Jackson appeal from their convictions for criminal
contempt for violating a gag order. Both argue the evidence is insufficient.
       We AFFIRM.
                               STATEMENT OF FACTS
       This contempt case arises from violations of a gag order entered in a high-
profile criminal corruption case in Dallas, Texas. Donald Hill, a Dallas public
official, was indicted for conspiracy to commit bribery, bribery, conspiracy to

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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commit extortion, extortion, and conspiracy to commit money laundering. Hill
was represented by Ray Jackson. Hill’s wife was also a defendant in the case
and was represented by Victor Vital.
         There was extensive media attention given to the case. The district court
became increasingly concerned over the effect pretrial publicity could have on
the ability to select an impartial jury. The district court distributed a proposed
gag order limiting extra-judicial statements. No party raised any objection or
sought clarification. On June 12, 2009, ten days prior to the commencement of
trial, the district court entered the order. The district court explained in the
order its purpose. Specifically, the order was to protect the defendants’ rights
to a fair trial by an impartial jury. The order was binding on the defendants, the
attorneys     for   the   government   and   the   defense,   and   all   employees,
representatives, and agents of the attorneys.
         On June 18, four days before trial, Hill and Jackson participated in a
television interview conducted by Gary Reaves, a local news station reporter.
Ken Carter, the public relations representative for Hill, had arranged the
interview. Before the interview, Jackson, Vital, and Carter discussed ground
rules.     Although the rules were not memorialized in writing, the rules
purportedly prohibited Reaves from asking questions about the pending criminal
case or about the Hills’ personal lives. Reaves allegedly agreed to the rules.
         During the interview, Hill made statements that Jackson suspected were
in violation of the gag order.         Jackson testified that he had become
uncomfortable with the nature of the interview almost immediately, but he
allowed the interview to continue. Jackson also was questioned and made
statements regarding the case.
         The district court was made aware of the interview through an internet
service that ran automatic searches for press on the case. The court ordered the
defendants, counsel, and public relations representative for the defendants to

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appear the morning of the criminal trial for a hearing on possible violations of
the gag order. Hill and Jackson were provided with notice of the criminal
contempt charge at that hearing.
      A one-day bench trial on the contempt charges was later conducted.
Carter, Jackson, and Vital testified. The district court issued its Findings of
Facts and Conclusions of Law. Hill and Jackson were found guilty of criminal
contempt. Hill was sentenced to 30 days imprisonment and Jackson to a $5,000
fine and 120-day suspension from receiving any new criminal appointments in
the Northern District of Texas.      On appeal, both defendants challenge the
sufficiency of the evidence.
                                  DISCUSSION
      We review a district court’s finding of guilt after a bench trial to determine
whether the conviction is supported by substantial evidence. United States v.
Adams, 174 F.3d 571, 578 (5th Cir. 1999). Where defendants have preserved a
challenge to the sufficiency of the evidence, as Hill and Jackson have, we review
the denial of a motion for judgment of acquittal de novo. United States v. Burns,
162 F.3d 840, 847 (5th Cir. 1998). We determine whether, when viewing the
evidence in the light most favorable to the verdict, “a rational trier of fact could
have found that the evidence established the essential elements of the offense
beyond a reasonable doubt.” United States v. Ferguson, 211 F.3d 878, 882 (5th
Cir. 2000).
      Two challenges are raised to the sufficiency of the evidence.            The
defendants contend that the gag order was not reasonably specific, and the
government failed to prove their intent to violate the gag order. A criminal
contempt conviction under 18 U.S.C. § 401(3) requires proof beyond a reasonable
doubt that there was “(1) a reasonably specific order; (2) violation of the order;
and (3) the willful intent to violate the order.” United States v. Allen, 587 F.3d
246, 255 (5th Cir. 2009) (citation omitted).

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I.    Specificity of the Order
      We start with the relevant language of the gag order:
      2.    No person covered by this order shall make any statement to
            members of any television, radio, newspaper, magazine,
            internet (including, but not limited to, bloggers), or other
            media organization about this case, other than matters of
            public record, that could interfere with a fair trial or
            otherwise prejudice Defendants, the Government, or the
            administration of justice. . . .

      4.    Parties may discuss, without elaboration or any kind of
            characterization, information contained in the public record;
            scheduling information; and any discussion or order by the
            Court that is a matter of public record.

      “Determining whether an order is specific requires a factual inquiry into
the reasonableness of the order’s specificity, given the context in which it was
issued.” In re Hipp, Inc., 5 F.3d 109, 112 (5th Cir. 1993) (citation omitted). The
district court relied on precedents addressing restraints on out-of-court
statements challenged as First Amendment violations.         We agree with the
district court that those cases offer the best guidance for determining whether
the gag order was reasonably specific.
      We first discuss a United States Supreme Court case that held a Nevada
attorney disciplinary rule governing pretrial publicity was void for vagueness.
Gentile v. State Bar of Nev., 501 U.S. 1030 (1991). In that case, a criminal
defense attorney held a press conference and stated that the evidence would
show his client’s innocence, that a certain policeman was the likely perpetrator,
and that the victims were not credible. Id. at 1045. The Southern Nevada
Disciplinary Board of the State Bar disciplined him for violating the state
supreme court’s rule governing attorneys’ extra-judicial statements. Id. at 1033.
The relevant portions of the rule provided that:




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      1.    A lawyer shall not make an extrajudicial statement that a
            reasonable person would expect to be disseminated by means
            of public communication if the lawyer knows or reasonably
            should know that it will have a substantial likelihood of
            materially prejudicing an adjudicative proceeding. . . .

      3.    Notwithstanding subsection 1 . . ., a lawyer . . . may state
            without elaboration:
            (a) the general nature of the claim or defense;
            (b) the information contained in a public record. . . .

Id. at 1060-62.
      The Supreme Court determined that this rule was void for vagueness
because the “notwithstanding” language led the attorney to believe that
statements falling under Rule 3 subsections (a) and (b) were acceptable even if
the statements had a substantial likelihood of materially prejudicing a
proceeding. Id. at 1048. Further, the ability to state the “general nature” of the
claim “without elaboration” gave insufficient guidance as to what was prohibited.
Id. at 1048-49.
      Here, the defendants argue that the gag order is similar to the one in
Gentile in that it failed to provide sufficient guidance as to what was prohibited.
The defendants contend that the order’s provision that parties could “discuss,
without elaboration or any kind of characterization, information in the public
record” is vague because it gives no indication as to when remarks pass from the
“safe harbor of the general to the forbidden sea of elaborated.”
      The district court rejected this argument and instead relied on one of our
precedents to guide its interpretation of the gag order. See United States v.
Brown, 218 F.3d 415, 419 (5th Cir. 2000). In Brown, a defendant in a highly-
publicized case appealed the district court’s refusal to vacate or modify a gag
order, arguing the order was unconstitutionally vague. Id. at 420, 430. This
court distinguished Gentile, which involved a rule of professional conduct



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applicable only to counsel, from a restriction on extra-judicial speech applicable
to all trial participants. Id. at 428. The court summarized the gag order but did
not quote it. Id. at 419. For purposes of a more precise comparison to the order
in the present case, we quote the comparable language from the order as
reproduced in one of the briefs in that appeal. The order first barred in general
terms all extrajudicial statements or interviews. It then said this:
      Nothing set forth above shall prohibit any of the above parties from
      the following:
      (1) Stating, without elaboration or any kind of characterization
      whatsoever:
      (a) the general nature of an allegation or defense made in this case;
      (b) information contained in the public record of this case;
      (c) scheduling information;
      (d) any decision made or order issued by the court which is a matter
      of public record.
      (2) Explaining, without any elaboration or any kind of
      characterization whatsoever, the contents or substance of any
      motion or step in the proceedings, to the extent such motion or step
      is a matter of public record in this case and any ruling made thereon
      to the extent that such ruling is a matter of public record.
See Brief for Appellee at 8, Brown, 2000 WL 33981267.
      Analyzing the order’s language for vagueness, we determined that “the
order provid[ed] sufficient guidance regarding the nature of the prohibited
comments.”    Brown, 218 F.3d at 430.       Although we did not refer to the
“elaboration” and “characterization” language of the order, we implicitly
approved this language when we found “no reason to believe that the parties in
th[e] case would not understand the meaning” of the order. Id.
      The defendants argue that by being allowed to “discuss” the case but
without elaboration, they were given broader rights than in Gentile, and as we
just showed, also in Brown, where the parties could only “state without
elaboration” certain general information. See Gentile, 501 U.S. at 1061. They
contend that the word “discuss” makes the order’s instructions unclear because


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it means they are allowed “to present in detail” but must do so “without
elaboration or characterization of any kind.” We disagree. There is no dispute
that the phrase “without elaboration or characterization of any kind” modifies
the word “discuss.” Although “discuss” may not have been the most apt word to
use, it did not redact “out” from “without elaboration.”
       The defendants’ contention that the order is unclear is further weakened
by their failure to suggest any changes to the district court after being given a
draft of the order for review. The gag order was reasonably specific.
II.    Violation of the Order
       We now turn to whether there was a violation of the district court’s order.
We need not agree that every statement identified by the district court violated
the order. The district court’s finding of criminal contempt can be affirmed if at
least one statement made by a defendant violated the gag order. See Teague v.
Quarterman, 482 F.3d 769, 773 (5th Cir. 2007). Instead of analyzing each
statement identified by the district court, we address only the one that is the
strongest support for the district court’s finding of guilt as to each defendant.
       One of the questions asked of Hill by Reaves was: “If you’re not guilty,
why do you think you’re getting prosecuted?” Hill answered,
       And what I’ve said, and I’ve expressed it several times, is that we
       can now look in hindsight and see that local Democratic officials
       were targeted by the FBI and the Justice Department under our last
       president, Mr. Bush, so that now we can look back and see a clear
       statistical and anecdoctal body of evidence that shows that that was
       what was happening. So I respect the role that the government
       plays in investigating [] wrongdoing or alleged wrongdoing, I don’t
       think I can walk away from the fact that I fit the pattern that was
       exhibited by this Bush Justice Department of being a local
       Democrat, being on the rise, and being told by an agent when he
       first meets me that my political career is over with. I think, in part,
       I’m here because I was targeted . . . The jury will have to look at the
       evidence and the facts and what people say from the witness stand,
       and that won’t deal with very much, if anything, about local
       Democrats or politics, it will just deal with whether Don Hill and

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      Sheila Hill did anything that was wrong and improper. And I can
      sit here with a certainty, looking at you right now and say to you
      that we didn’t. And I am convinced that we’re going to be
      exonerated. (Emphasis added).
      The district court found that Hill’s earlier motion to dismiss the
indictment because of selective prosecution did not use the phrase or concept of
“clear statistical and anecdoctal body of evidence,” nor did that appear in other
pleadings. The court held that the assertion there was proof of government bias
exceeded the public record and threatened the fairness of the trial.
      We agree that Hill’s statement violated the gag order. Hill did not limit
his comments to the general claim that Democrats were being targeted for
prosecution by the Bush Administration, which would have been permissible
because those claims were included in Hill’s publicly-filed selective prosecution
motion. Claiming there was statistical and anecdoctal evidence supporting his
claim, though, exceeded the public record. That statement had the potential to
impede efforts to impanel an impartial jury.
      After Hill completed his interview, Jackson then was asked a number of
questions by Reaves. The district court held that Jackson’s answers to three of
the questions violated the gag order. We consider only one of the answers. The
question posed by Reaves was “What do you think about [Hill’s] claim that this
whole prosecution is politically motivated?” Jackson answered,
      Well, that’s – that’s been the claim since the beginning. That’s been
      a claim of several people around the country. I can’t – I can’t
      particularly speak to that, because I don’t know. But I know that
      there are several people who have made the claim and then there’s
      been several people who have shown that during the Bush
      Administration that Democrats were targeted.

      The district court concluded, “Jackson did not purport to quote from Hill’s
overruled Motion to Dismiss [for Selective Prosecution], but contended that the
prosecution was politically motivated, and implied it was connected to a larger


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scheme by the Bush Administration.” The statements, the court insisted, “could
have prejudiced the venire and interfered with a fair trial . . . .”
        The fact that Jackson did not actually quote from the motion to dismiss
would not in itself violate the gag order’s language. Yet the statement also goes
beyond what had been filed in the case because Jackson stated that it had been
“shown” the Bush Administration was targeting Democrats. That transforms the
allegations in the motion into a statement of fact, clearly an elaboration that was
potentially prejudicial to the jury pool.      This violation might fairly be seen as
less egregious than those of Hill, but it was a violation nonetheless.
III.    Intent to Violate the Order
        Hill and Jackson contend that the government failed to prove they acted
with the requisite intent to violate the gag order. The intent element of criminal
contempt requires “a willful, contumacious or reckless state of mind.” In re
Hipp, 895 F.2d at 1509. Behavior that amounts to a “reckless disregard for the
administration of justice[,]” as opposed to negligent behavior, is a sufficient basis
on which to find contempt. See Dominique v. Ga. Gulf Corp., 81 F.3d 155, 1996
WL 101416, at *6 (5th Cir. 1996) (unpublished).
        There was evidence to support that the defendants had the intent to
violate the gag order. Hill’s public relations consultant, Carter, arranged the
interview with Reaves some time before the gag order was entered. Although
ground rules were established that purportedly prohibited Reaves from asking
questions about the case, Carter, a non-lawyer who had never seen a copy of the
gag order, was responsible for relaying the rules from memory to Reaves before
the interview took place. Neither Hill nor Jackson confirmed or mentioned the
rules to Reaves before the interview.
        Jackson testified that he had not had sufficient time to study the order
because he had been busy with another trial. Despite his admitted lack of



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preparation, he still neglected to bring a copy of the gag order to the interview.
Hill, also an attorney, did not have a copy of the order.
      Although the defendants’ mere participation in the interview four days
before trial did not violate the gag order, they should have proceeded cautiously
with their answers. They did not. A couple questions into the interview, Hill
was asked an open-ended question by Reaves; specifically, if Hill were not guilty,
why was he being prosecuted? Hill, aware the gag order’s purpose was to protect
the impartiality of the jury pool, responded that he was being selectively
prosecuted due to political and racial motivations. The government contends
that it was reckless for Hill to interject the allegations of selective prosecution
into the interview. The government argues that the district court denied Hill’s
motion to dismiss for selective prosecution, and therefore that issue would never
be before the jury. Hill’s response, the government insists, was intended to taint
the jury pool.
      Jackson testified at the contempt trial that he became uncomfortable with
the interview questions and Hill’s answers almost immediately. He was most
concerned about Hill’s comments on selective prosecution, yet he too expounded
on the very subject when questioned later by Reaves. Jackson admitted that at
no point did he stop the interview or ask for a break to retrieve and review a
copy of the gag order. After the interview, Jackson was concerned that Hill’s
answers violated the order, but neither he nor Hill requested that Reaves not
broadcast the interview or gave any indication that the interview may have
violated the gag order.
      The defendants’ conduct evinced a willful, or at the very least reckless,
disregard for the district court’s gag order, the need for a fair trial by an
impartial jury, and the fair administration of justice.
      We therefore AFFIRM both convictions.



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