     Case: 09-60889 Document: 00511327095 Page: 1 Date Filed: 12/20/2010




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

                                                 FILED
                                                                         December 20, 2010

                                     No. 09-60889                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



UNITED STATES OF AMERICA,
                                                   Plaintiff,
v.

VINSON ERIC WOODBERRY,

                                                   Defendant,


LATRICE WESTBROOKS,

                                                   Appellant.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 5:07-CR-25-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Attorney Latrice Westbrooks, pro se, appeals the district court’s order
finding her in civil contempt of court and recommending that the Mississippi
State Bar investigate her for possible disciplinary action. We AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                 No. 09-60889

                       FACTS AND PROCEEDINGS
      This action stems from Westbrooks’ representation of a criminal defendant
in a drug conspiracy case. Westbrooks was retained by Vinson Woodberry to
defend him in proceedings relating to his indictments on various federal and
state charges for the distribution of crack cocaine. Woodberry was originally
scheduled to face trial on the federal charges on June 3, 2008. After Westbrooks
requested, and was granted, four continuances of the trial date, Woodberry
requested a change of plea hearing and pled guilty to one count of distribution
of cocaine base in violation of 21 U.S.C. § 841(a)(1). The district court set
sentencing for May 19, 2009. Westbrooks moved to continue the sentencing, and
the district court reset sentencing for June 16, 2009. On Friday, June 12, 2009,
at 6:21 p.m., Westbrooks filed a motion to continue the June 16 sentencing. On
Monday, June 15, the district court contacted Westbrooks and informed her that
the sentencing would not be continued. Westbrooks informed the district court
that she would not appear in court, and she did not appear.
      Due to Westbrooks’ absence, the district court issued an order resetting
Woodberry’s sentencing to July 2, 2009. Also in that order, it noted that
Westbrooks “has not responded to the Presentence Investigation Report and has
failed to meet with the Probation Officer at a time previously scheduled.” The
court appointed the Federal Public Defender (“FPD”) to review Woodberry’s case
file and report to the court. The order also stated that Westbrooks “should be
prepared to explain to the Court why she should not be held in contempt for
failing to appear.” The FPD contacted Westbrooks and offered his assistance.
Westbrooks accepted the FPD’s offer and informed him that she had not lodged
any objections to the presentence report, that “she had other people that were
needing trials and that Mr. Woodberry was going to be facing a long sentence
anyway,” and that she would not be attending the rescheduled July 2 sentencing
due to a murder trial. The FPD then assumed representation of Woodberry and

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filed objections to the presentence report.1 Westbrooks did not notify the district
court she would not appear on July 2. On July 2, represented by an assistant
federal public defender, Woodberry was sentenced to 57 months’ imprisonment.
       The district court later gave Westbrooks notice of a contempt hearing and
issued a written order outlining specific issues that would be addressed. Several
weeks later, the district court held a contempt hearing to determine whether
Westbrooks should be held in civil or criminal contempt for her failure to appear
at the two sentencing hearings. Westbrooks appeared and was represented by
counsel at the hearing. After receiving testimony from Woodberry, Woodberry’s
parents, Federal Public Defender Dennis Joiner, and Westbrooks, the district
court found Westbrooks in civil contempt of court. The court ordered Westbrooks
to pay $2,972.20 to the public defender’s office as a compensatory civil contempt
sanction as reimbursement for expenses it incurred representing Woodberry.2
It also “recommend[ed] that this matter be sent to the Mississippi State Bar for
further investigation, and possible disciplinary action, as to the adequacy of the
legal representation provided to Woodberry and the credibility of the billable
hours printout showing the hours Westbrooks spent on this case.” United States
v. Woodberry, 672 F. Supp. 2d 761, 770 (S.D. Miss. 2009). Westbrooks timely
appealed.
                              STANDARD OF REVIEW
       “We review contempt orders and sanctions imposed thereunder for an
abuse of discretion. We review the district court’s underlying findings of fact for


       1
        The presentence report recommended a sentence of 97 months based on a guideline
sentencing range of 97 to 121 months. After the FPD lodged objections, Woodberry received
both acceptance of responsibility and safety valve reductions, reducing his guideline
sentencing range to 57 to 71 months.
       2
         The amount was determined after the public defender’s office, at the request of the
district court, “calculated the costs of its services provided to Woodberry.” United States v.
Woodberry, 672 F. Supp. 2d 761, 768 (S.D. Miss. 2009).

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clear error and its underlying conclusions of law de novo.” Whitcraft v. Brown,
570 F.3d 268, 271 (5th Cir. 2009) (quotations omitted).
      The district court’s recommendation of referral to the Mississippi State
Bar for potential disciplinary action is not, standing alone, appealable. This
court, however, has taken an expansive view of appealability, allowing appeals
where there has been a finding of judicial misconduct, even absent an official
reprimand. See, e.g., Walker v. City of Mesquite, 129 F.3d 831, 832 (5th Cir. 1997)
(allowing attorney to appeal where he was admonished by trial judge because
the court was “persuaded beyond peradventure that one’s professional
reputation is a lawyer’s most important and valuable asset.”); see also In re
ProEducation Int’l, Inc., 587 F.3d 296, 299 n.1 (5th Cir. 2009) (“[A]n attorney’s
right to defend his or her professional reputation confers Article III jurisdiction
for purposes of appeal.”). Because the district court’s recommendation that the
state bar investigate Westbrooks for possible disciplinary action also contains
factual findings related to whether she provided adequate legal representation
to Woodberry that negatively impact her professional reputation, we hold the
recommendation appealable. “[W]e review the district court’s factual findings of
attorney misconduct only for clear error.” Ibarra v. Baker, 338 F. App’x 457, 460
(5th Cir. 2009). “Giving due regard to the opportunity of the district court to
judge the credibility of the witnesses, we will deem the district court’s factual
findings clearly erroneous only if, based on the entire evidence, we are left with
the definite and firm conviction that a mistake has been committed.” United
States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007).
                                 DISCUSSION
I.    Civil Contempt
      Civil contempt requires “clear and convincing evidence that (1) a court
order was in effect, (2) the order required specified conduct by the respondent,



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and (3) the respondent failed to comply with the court’s order.” United States v.
City of Jackson, 359 F.3d 727, 731 (5th Cir. 2004) (quotations omitted). “Our
circuit . . . has consistently held that good faith is not a defense to a finding of
civil contempt.” Id. at 735 n.25. “Judicial sanctions in civil contempt proceedings
may, in a proper case, be employed for either or both of two purposes; to coerce
the defendant into compliance with the court’s order, and to compensate the
complainant for losses sustained.” United States v. United Mine Workers of Am.,
330 U.S. 258, 303–04 (1947). “[S]anctions for civil contempt are meant to be
‘wholly remedial’ and serve to benefit the party who has suffered injury or loss
at the hands of the contemnor.” Petroleos Mexicanos v. Crawford Enter., Inc., 826
F.2d 392, 399 (5th Cir. 1987). Although these sanctions normally “serve[] only
the purpose of a party litigant,” S. Ry. Co. v. Lanham, 403 F.2d 119, 124 (5th
Cir. 1968), we have allowed recovery by nonparty victims of contumacious
conduct where the relief can “be characterized as merely an incidental part of
the main cause,” City of Jackson, 359 F.3d at 736 (emphasis omitted).
      We have little difficulty concluding that the district court did not abuse its
discretion in finding Westbrooks in civil contempt of court. There was (1) an
order in effect, (2) requiring Westbrooks to appear at the sentencing, and
(3) Westbrooks did not comply with that order; the elements of civil contempt are
satisfied. See id. at 731 (establishing elements). Westbrooks argues, as she did
before the district court, that a finding of civil contempt is inappropriate because
she did not act in bad faith and that her absences should be excused due to
conflicts with proceedings in another jurisdiction. We disagree.
      As to her first argument, “good faith is not a defense to a finding of civil
contempt.” Id. at 735 n.25. And although Westbrooks repeatedly argues that her
conflicting state court schedule justifies her absences, this argument misses the
point. “When an attorney fails to appear or makes a delayed appearance . . . the



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conduct which is subject to sanction is not the absence itself but the failure to
provide sufficient justification for the absence or delay.” In re Greene, 213 F.3d
223, 225 (5th Cir. 2000) (quotations omitted) (holding that neither sanctions nor
criminal contempt are appropriate for an attorney who was twelve minutes late
to a hearing due to a recording error by the attorney’s secretary). Westbrooks
never notified the court, opposing counsel, or her client, that she would not
appear at the second sentencing hearing. Irrespective of whether or not her
justification for the absences are sufficient, her failure to timely provide the
court with such information is simply inexcusable.3 Westbrooks’ eleventh-hour
motion to excuse her presence at the first sentencing hearing was denied, and
she failed to formally notify the court of her intention to skip the second
sentencing hearing.
       This is not a case of attorney negligence or a single isolated incident. Cf.
In re Adams, 505 F.2d 949, 950 (5th Cir. 1974) (vacating conviction for criminal
contempt but allowing “further disciplinary proceedings related to this matter”
where attorney negligently missed a court appearance). Unlike the attorney in
Greene, Westbrooks made a conscious decision to disregard two orders of the
district court. “Contempt results only from the lack of a good reason for the
lawyer’s absence. No contempt has been committed if the absence is excusable
because it was occasioned by good cause.” United States v. Onu, 730 F.2d 253,
256 (5th Cir. 1984). In Onu, an attorney who was also a member of the Texas
state senate represented a criminal defendant. Id. at 254. The attorney agreed
to a pretrial conference date and then sought a last-minute continuance of the
conference because of a previously scheduled legislative session, which was


       3
        The record suggests that on the date of the second sentencing hearing, a state court
judge called the district court at Westbrooks’ request to explain Westbrooks’ absence, and
further suggests that Westbrooks was confused as to the date of the sentencing. Neither
excuses Westbrooks’ failure to timely communicate with the district court.

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denied. Id. at 254–55. The attorney did not appear at the conference and the
district court held him in contempt. “The prosecuting attorneys were present and
were ready to proceed. A jury venire of thirty-five persons had been called.” Id.
at 255. This court affirmed, holding that “the problem was created not by [the
attorney-senator’s] attention to his state legislative duties but his carelessness
concerning his responsibilities as a member of the bar of the federal court.” Id.
at 258.
       Westbrooks’ failure to attend the sentencing hearings resulted in the
waste of the prosecutor’s and the district court’s time. As evinced by the last-
minute nature of her motion to continue the first sentencing hearing and her
failure to formally request that the district court continue the second sentencing
hearing, the problem was created not by Westbrooks’ attention to her state court
duties, but by her carelessness concerning her responsibilities as a member of
the federal court bar. Accordingly, we AFFIRM the district court’s holding of
Westbrooks in civil contempt.4




       4
         Westbrooks also argues that her actions did not force the district court to appoint the
FPD and did not cause the FPD to incur $2,972.20 in expenses to represent Woodberry.
Westbrooks reasons that “the objections [to Woodberry’s presentence report] could have been
raised by Westbrooks during the sentencing.” This argument lacks any merit. After reviewing
Woodberry’s file, the FPD discovered that Woodberry chose not to discuss his crime with the
probation officer who conducted his presentence interview because his attorney, Westbrooks,
who did not show up for the presentence interview, was not present. The United States
Probation Officer’s recommendation for sentencing in Woodberry’s case went so far as to note
that “this officer feels sorry for this defendant due to his choice of legal representation. Had
his attorney appeared for the presentence interview, which could have facilitated the
defendant accepting responsibility . . . [Woodberry could have received acceptance of
responsibility and safety valve reductions].” The FPD quickly made arrangements for
Woodberry to meet with federal officials to facilitate acceptance of responsibility and safety
valve reductions. The gravity of the near-failure to lodge objections in this case cannot be
understated: Woodberry’s guideline sentence range was reduced from 97 to 121 months to 57
to 71 months. To be sustained, the acceptance of responsibility and safety valve objections
required Woodberry to take action prior to the sentencing hearing; contrary to Westbrooks’
assertions, they could not “have been [successfully] raised by Westbrooks at sentencing.”

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II.    Recommendation that the State Bar of Mississippi Investigate Westbrooks
       for Potential Disciplinary Proceedings

       In addition to holding Westbrooks in civil contempt of court, the district
court also found “evidence that Westbrooks failed to provide Woodberry with
adequate legal representation” and it “recommend[ed] that this matter be sent
to the Mississippi State Bar for further investigation, and possible disciplinary
action.” Woodberry, 672 F. Supp. 2d at 769–70. The district court reached its
conclusion by reviewing Westbrooks’ billing records and comparing those records
to testimony received at the hearing. Id. at 770. It found that “Westbrooks’
billable hours are suspect because 36.9 hours [the total time Westbrooks spent
on Woodberry’s case according to her records] multiplied by $ 250.68 [her
approximate billing rate] conveniently totals the exact amount paid to
Westbrooks ($ 9,250.00) by Mr. and Mrs. Woodberry.” Id. The district court also
highlighted the fact that Westbrooks billed for time spent at the first sentencing
hearing—the same hearing she did not attend. Id. Finally, it noted Westbrooks’
failure to attend the interview with the probation officer and her failure to
appear at Woodberry’s sentencing, finding that “Westbrooks effectively
abandoned [Woodberry] after the plea hearing and provided no further services.”
Id.
       Upon this evidence, the district court did not clearly err in finding attorney
misconduct. Far from being “left with a definite and firm conviction that a
mistake has been committed,” Trujillo, 502 F.3d at 356, we echo the district
court’s recommendation that the Mississippi State Bar investigate this matter
for possible disciplinary action. We AFFIRM the district court’s recommendation.
                                 CONCLUSION
       The order of the district court is AFFIRMED in its entirety.




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