                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-4212
IN RE ERIC D. TROUTT,
                                       Respondent-Appellant,

                        ____________
           Appeal from the United States District Court
                for the Southern District of Illinois.
        No. 04-mc-0029-MJR—Michael J. Reagan, Judge.
                        ____________
   ARGUED OCTOBER 27, 2005—DECIDED AUGUST 21, 2006
                    ____________


  Before RIPPLE, KANNE, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. This appeal concerns the way
in which the district court handled what began as an
attorney discipline matter. The central actors are Eric D.
Troutt, the attorney, and District Judge Michael J. Reagan.
Briefly put, Judge Reagan concluded that Troutt had failed
to live up to his obligations to the bar of the Southern
District of Illinois, and, even worse, had conducted himself
in a way that amounted to criminal contempt of court.
Troutt has appealed from the district court’s order of
November 16, 2004, finding him in criminal contempt and
suspending him from practicing law in the district court for
five years. Although we by no means condone the behavior
that Troutt displayed before the district court, we conclude
that the procedures the court followed do not pass muster,
and we therefore reverse and remand for further proceed-
ings.
2                                               No. 04-4212

                             I
   The imbroglio began when, on September 4, 2002, Troutt
filed an affidavit of resignation from the bar of the State
of Oklahoma, pending disciplinary proceedings that were
then before the Oklahoma Supreme Court. That court
accepted his resignation and struck his name from its roll
of attorneys. Troutt was ineligible to file an application
for reinstatement to practice in Oklahoma for a five-year
period.
  Some months later, in February of 2003, Troutt sought
and won admission to practice in the United States District
Court for the Southern District of Illinois. On May 18, 2004,
however, upon receiving a copy of the Oklahoma Supreme
Court’s order approving Troutt’s resignation from the state
bar pending disciplinary proceedings, the district court sent
a notice to Troutt pursuant to Local Rule 83.4(c) of the U.S.
District Court for the Southern District of Illinois. The
notice informed Troutt that he had 30 days in which to
inform the court “why the imposition of similar discipline by
th[e] Court, consisting of disbarment from practice in this
Court, would be unwarranted.” On May 24, 2004, Troutt
responded in a detailed letter, claiming that he had neither
consented to disbarment in Oklahoma nor resigned to avoid
discipline. Instead, he asserted, the allegations against him
in Oklahoma “were dismissed and never proven” and “no
discipline was imposed against him.” Accordingly, he
argued, because he had “never been disciplined by any Bar,”
“there [was] no basis for this Court to impose discipline.”
The judges in the Southern District of Illinois saw matters
differently, and in an order dated June 25, 2004, they
suspended Troutt from practice in that district.
  On July 6, 2004, Troutt filed a motion to alter the June 25
order. His motion largely rehashed the arguments he had
made in his original letter about the circumstances sur-
rounding his resignation from the Oklahoma bar. In
No. 04-4212                                                3

response, the court set a status conference for July 30, to
address whether it was necessary to have a hearing on
Troutt’s motion. At the status conference, the court directed
Troutt to file an affidavit providing the details about his
resignation from the Oklahoma bar, including relevant
documents from that proceeding, and it informed Troutt
that it would issue a written order upon receipt of this
affidavit. Troutt complied, and after reviewing the affidavit
and the documents, the court issued an order on August 5
rescinding the earlier order suspending him from practice
and directing the clerk to reinstate his name to the roll of
attorneys. Importantly for what was to come, the reinstate-
ment order was not an unqualified vindication of Troutt; it
included the following critical observations:
      The undersigned Judge consulted with each of the
    Judges who signed the June 25, 2004 Order suspending
    Troutt. They accept the undersigned Judge’s recommen-
    dation that the suspension be lifted. However, in
    conferring with the other Judges, it became clear that
    Troutt’s performance in the District Court has been less
    than stellar. Indeed he was more than 30 minutes late
    for the status conference in the instant case. The Court
    cautions Troutt that further misconduct may result in
    imposition of the same discipline this Order vacates, or
    worse.
Judge Michael J. Reagan, to whom the matter had been
assigned randomly, signed this order.
  Believing that the August 5 order “disparage[d] [his]
character” and “malign[ed] his performance before the
court,” Troutt filed a “Response to Court Order.” His
response took exception to the characterization of his
work as “less than stellar” and objected that the court
had failed to give him notice and an opportunity to re-
spond to its accusations of misconduct. He went on to
complain that the whole matter had come about in re-
4                                                No. 04-4212

taliation for his reporting a former law partner, Terry
Sharp, for fraudulent billing practices; it was Sharp, Troutt
believed, who had sent the Oklahoma court’s order to courts
all around the country. The next day, Troutt filed a “Motion
to Alter or Amend Order,” in which he asked the court to
strike the last three sentences of its August 5 order and, if
the court thought that Troutt had committed misconduct of
any kind, to proceed under Local Rule 83.4(d)(1) (“Disciplin-
ary Rule IV—Standards for Professional Conduct”), which
assures notice and an opportunity to be heard for an
attorney accused of misconduct. Troutt’s motion contained
harsh language about the court itself, claiming that “rather
than following the rules of due process, [the court] takes its
secret information and imposes discipline by public repri-
mand and admonishment without giving Respondent his
due process rights under Rule 83.4(d)(1).” He also accused
the court of relying on “illusory references to unknown
information obtained by ‘conferring with other judges.’ ”
  On August 18, Judge Reagan issued a Rule To Show
Cause order directing Troutt to explain why the court
should not hold him in criminal contempt for his “vitriolic”
response to the court’s order reinstating him to practice.
The court gave three reasons for its order, which we
reproduce in full to give a sense of the escalating problem:
       First, the Federal Rules of Civil Procedure provide no
    procedural vehicle for an attorney who is dissatisfied
    with a Court Order to excoriate the Judge issuing that
    Order. In appropriate circumstances, motions may be
    filed. . . . But lawyers may not engage in mordacious
    attacks on the Court via diatribes labeled as a “Re-
    sponses” [sic] to Orders.
      Second, the substantive contents of the Response
    warrant issuance of a Show Cause Order. Troutt
    pointedly accuses the undersigned Judge of disparaging
    his character and maligning his performance. Troutt
    claims that the Judge has found him guilty of “miscon-
No. 04-4212                                                 5

    duct” without providing Troutt notice and an opportu-
    nity to be heard. In fact, the August 6th Order did no
    such thing. The Order did mention that other District
    Judges had expressed concerns regarding Troutt’s
    performance in past cases in this District, and the
    Order did caution Troutt about being late for Court
    appearances. But the Order granted Troutt’s motion
    and reinstated him to the rank of lawyers authorized to
    practice before this Court.
      Third, Troutt’s Response not only constitutes an
    unbridled attack on the undersigned Judge’s authority,
    Troutt also appears to be using this Court’s electronic
    case filing system as a bully pulpit from which to
    belittle his former business partner, attorney Terry
    Sharp. The Response accuses Sharp of “fraudulently
    billing clients . . . for a long time” and snidely quips
    that Sharp “has had quite the RICO operation going.”
    Troutt then challenges this Court to meet its obliga-
    tion to discipline Sharp “for such gross violations.”
(Emphasis in original; footnote omitted.) The order went on
to invite Troutt to file a judicial misconduct complaint
against the judge with Chief Circuit Judge Flaum, or to
report Attorney Sharp to the Illinois Attorney Registra-
tion and Disciplinary Commission, if he really thought
either step was warranted. Last, it set October 29, 2004, as
the date for a hearing at which Troutt was instructed
to “appear and show cause why he ought not be held
in criminal contempt for filing his August 6, 2004 ‘Response
to Court Order.’ ”
   In response to this order, Troutt faxed Judge Reagan a
five-page, ex parte letter on August 24, in which he said that
he wanted to resolve his dispute with the court informally.
The letter began by reviewing the history of his suspension
and his complaints about the reinstatement process (where
he called the judge “disingenuous” for using his tardiness as
6                                                No. 04-4212

an “excuse” for reprimand), then listed five errors that the
court had committed, set forth Troutt’s theory about what
was really going on, and concluded with “the solution.” The
tone of the letter degenerates as it goes on. Error No. 1
complains about the fact that the whole matter was on the
public record. Error No. 2 accuses the court of “jumping” to
conclusions about the Oklahoma order. Error No. 3 begins,
“[n]ow being forced to reinstate me, the court was not happy
with having to swallow its pride and reinstate me . . . . As
a way of getting back at me, the court decided to throw
in some dicta which was completely unnecessary and totally
unrelated to the purpose of the order.” Error No. 4 argues
that the court was wrong to treat this as possible criminal
contempt, and Error No. 5 essentially accuses the court of
favoritism toward Sharp: “Apparently, who gets admon-
ished for using the system to belittle people is dependent
upon who you are or whom you are belittling.” Troutt’s
theory of “the whole mess,” as he calls it, was that Sharp
had orchestrated everything, and that the judges were his
cat’s paws: “Rather than doing their own bidding, [the
judges in] Benton decided to have you do it for them and
you got caught in the middle.” Troutt ended with a plea to
have his name cleared.
   If Troutt had been hoping to resolve matters easily
with the August 24 letter, he was disappointed. In response,
Judge Reagan entered a Supplemental Show Cause Order
adding additional grounds for criminal contempt: Troutt’s
filing of pleadings in another Southern District case after he
was suspended but before he was reinstated; the August 24
letter itself; and a flyer in which Troutt claimed that a state
judge was “bought and paid for.” This order required Troutt
to respond by affidavit or memorandum by September 24.
On September 25, one day late, Troutt did so. In addition to
rehashing many of his earlier arguments, Troutt indicated
that he thought that Judge Reagan should disqualify
himself from the proceedings.
No. 04-4212                                                    7

  On October 27, two days before the scheduled hearing,
Troutt moved for a continuance “for private and confidential
health reasons.” The court granted his motion and resched-
uled the hearing for November 12. On November 10, Trout
again asked for a continuance, noting that he had a hearing
in another matter that conflicted with the scheduled
hearing. The court denied that request, noting that it would
consider Troutt’s failure to appear, absent extraordinary
circumstances, “as contumacious disregard for [the court’s]
order.” On November 11, when the court was closed for
Veteran’s Day, Troutt filed a motion entitled “Respondent’s
Motion to Make His Record.” In that motion, Troutt repre-
sented that he had “no less than eleven hearings, involving
no less than sixteen clients, set for hearing on November 12,
2004 in other courts.” The district court denied this motion
on the same day. Predictably, Troutt failed to appear at the
November 12 hearing. Judge Reagan issued a final order
finding Troutt guilty of criminal contempt beyond a reason-
able doubt, citing all of the grounds mentioned in the
earlier orders plus his failure to show up at the hearing.
Rather than punishing Troutt with a fine or imprisonment,
however, the Order instead suspends Troutt from the
practice of law in the district court for a period of five years,
requires him to complete certain continuing legal education,
and requires the Clerk of Court to provide copies of the
order to all other courts to which Troutt is admitted.


                               II
  Before addressing the merits of this appeal, there are two
preliminary matters we must address. First, we wish to
express our thanks to amicus curiae, Michael J. Gonring of
the law firm Quarles & Brady LLP, for his helpful brief on
behalf of the district court. Second, given the unusual
nature of the sanction the district court selected, we must
ask whether the order before us is better characterized as
8                                                No. 04-4212

a criminal contempt judgment, or if it in the end was a
decision about attorney discipline. Either way, it is an
appealable judgment, because it finally resolves Troutt’s
case. If it is criminal contempt, punishable under 18 U.S.C.
§ 401, certain consequences will follow; if it relates to
attorney discipline, those consequences are different, even
though this too would be a “judicial” action properly
challenged by appeal rather than recourse to the Judicial
Council of the Circuit. See Matter of Palmisano, 70 F.3d
483, 484-85 (7th Cir. 1995); accord, In re Martin, 400 F.3d
836, 840 (10th Cir. 2005); In re North, 383 F.3d 871, 874
(9th Cir. 2004). See also In the Matter of Jafree, 741 F.2d
133 (7th Cir. 1984). Unfortunately, given the way matters
unfolded, the order before us is something of a hybrid. The
district court consistently said that it was conducting a
criminal contempt proceeding, but, despite the fact that
§ 401 appears to limit the form of punishment to “fine or
imprisonment,” the court selected a disciplinary sanction.
  We have concluded that the best approach is to take
the court at its word, and to accept this as a criminal
contempt proceeding. The order, after all, specifically states
that the court has “found, beyond a reasonable doubt, that
Eric D. Troutt’s conduct before this Court constitutes
criminal contempt.” As such, this proceeding was (or should
have been, as we shall see) governed both by § 401 and FED.
R. CRIM. P. 42. Troutt, who is representing himself on
appeal, presents three principal arguments: first, that his
due process rights were violated by these proceedings;
second, that the evidence did not support a finding of
criminal contempt; and third, that the court’s decision
violated his First Amendment right to criticize the judge.
We find it necessary to reach only his pro-
cedural arguments, because we conclude that procedural
shortcomings in these proceedings require a remand.
  Our analysis does not require us to plunge into constitu-
tional doctrine. We look instead to the statute, 18 U.S.C.
§ 401, and the rule. Section 401 reads as follows:
No. 04-4212                                                   9

      A court of the United States shall have power to
    punish by fine or imprisonment, or both, at its discre-
    tion, such contempt of its authority, and none other,
    as—
      (1) Misbehavior of any person in its presence or so
    near thereto as to obstruct the administration of justice;
      (2) Misbehavior of any of its officers in their official
    transactions;
      (3) Disobedience or resistance to its lawful writ,
    process, order, rule, decree, or command.
As this court noted in Jafree, “[s]ection 401 recognizes two
types of contempt: direct and indirect. Direct contempt
is contumacious conduct committed in the actual pres-
ence of the court, . . . and may be punished summarily.” 741
F.2d at 135 (internal citation omitted). See also United
States v. Wilson, 421 U.S. 309, 316 (1975). All other con-
tempt must be treated as indirect contempt. Bearing
in mind the principle that only “the least possible power
adequate to the end proposed should be used in contempt
cases,” Anderson v. Dunn, 6 Wheat. 204, 231 (1821), the
Supreme Court said in Wilson that “[w]here time is not
of the essence, . . . the provisions of [FED. R. CRIM. P.] 42(b)
may be more appropriate to deal with contumacious
conduct. 421 U.S. at 319. Other factors distinguishing direct
from indirect contempt include whether the act
was committed in the presence of the judge and whether
extrinsic evidence will be needed to prove the contempt.
   It is worth underscoring, in this regard, that criminal
contempt is a crime, like all other crimes. See Bloom v.
Illinois, 391 U.S. 194, 201 (1968). It is for that reason that
the Supreme Court has held that a person accused of
criminal contempt enjoys the normal range of procedural
rights. See Int’l Union, United Mine Workers of America v.
Bagwell, 512 U.S. 821, 826-27 (1994) (referring to In re
Bradley, 318 U.S. 50 (1943) (double jeopardy); Cooke v.
10                                              No. 04-4212

United States, 267 U.S. 517, 537 (1925) (rights to notice
of charges, assistance of counsel, summary process, and
to present a defense); Gompers v. Bucks Stove & Range Co.,
221 U.S. 418, 444 (1911) (privilege against self-incrimina-
tion and right to proof beyond a reasonable doubt); and, for
contempts that involve imprisonment beyond six months,
right to trial by jury, Taylor v. Hayes, 418 U.S. 488, 495
(1974)).
   Rule 42 of the Federal Rules of Criminal Procedure
implements these principles. Rule 42(a), in effect, addresses
indirect contempts, while Rule 42(b) recognizes the power
of the court to take summary action against “a person who
commits criminal contempt in its presence if the judge saw
or heard the contemptuous conduct and so certifies.” Our
first task is to decide which of these subparts of the rule
applies to Troutt’s case. Although Judge Reagan stated in
his order that the contempt had occurred in his presence,
and so certified, most of the conduct mentioned in the show
cause order is right on the margin. (The exception is
Troutt’s failure to appear at the November 12 hearing,
which occurred in Judge Reagan’s presence and which
disrupted the court’s proceedings.) The rest of the conduct
that the judge cited in his show cause orders involved
disrespectful language in papers filed with the court. Time
was not of the essence. No trial was being disrupted by a
failure to comply with a court order, compare Wilson, 421
U.S. at 316, nor was any other immediate function of the
court threatened by Troutt’s conduct. Although Troutt’s acts
strike us as right on the margin between the two categories,
we conclude that at least some of the acts are better
characterized as outside the court’s presence, and so we
turn to Rule 42(a) to see whether the proceedings in this
case complied with it.
  Rule 42(a) sets forth three basic requirements: adequate
notice; the appointment of a prosecutor; and trial and
disposition. The notice may be provided in one of three
No. 04-4212                                                11

ways: in open court, in an order to show cause, or in an
arrest order. FED. R. CRIM. P. 42(a)(1). It must (1) inform the
accused person of the time and place of the trial, (2) allow
him or her a reasonable time to prepare a defense, and (3)
state the essential facts constituting the criminal contempt.
FED. R. CRIM. P. 42(a)(1)(A)-(C). The orders to show cause
that Judge Reagan issued here complied with this part of
the rule. We thus reject Troutt’s position insofar as he is
arguing (whether in the language of due process or under
the Rule) that the notice was defective.
  Troutt is on stronger ground, however, with respect to the
second and third requirements of Rule 42(a). The require-
ment in Rule 42(a)(2) to appoint a prosecutor is spelled out
in mandatory language: “The court must request that the
contempt be prosecuted by an attorney for the government,
unless the interest of justice requires the appointment of
another attorney. If the government declines the request,
the court must appoint another attorney to prosecute the
contempt.” (Emphasis added) The record does not reflect the
appointment of any prosecutor filing an appearance for the
November 12, 2004, hearing.
 These proceedings also did not comply with Rule 42(a)(3),
which reads as follows:
      A person being prosecuted for criminal contempt is
    entitled to a jury trial in any case in which federal law
    so provides and must be released or detained as [FED.
    R. CRIM. P.] 46 provides. If the criminal contempt
    involves disrespect toward or criticism of a judge, that
    judge is disqualified from presiding at the contempt
    trial or hearing unless the defendant consents. Upon a
    finding or verdict of guilty, the court must impose the
    punishment.
Because this contempt proceeding did not result in im-
prisonment for a period of more than six months, Troutt
12                                             No. 04-4212

had no right to a jury trial. See Taylor v. Hayes, supra. As
our account of the facts makes clear, however, the crim-
inal contempt here did “involve[ ] disrespect toward or
criticism of [the] judge.” That is certainly the way that
Judge Reagan understood the progressively harsh letters
and papers Troutt was submitting to the court. Troutt never
consented to having Judge Reagan preside over the con-
tempt proceeding.
  In a situation like this, right at the borderline between
direct and indirect contempt, the judge should err on the
side of providing the procedural safeguards assured by Rule
42(a). Only if he concluded that time was of the essence, or
that failure to act would leave the contempt unpunished, or
that some other equally powerful reason compelled the use
of Rule 42(b) summary procedures, should he act sum-
marily. In this case, none of those exigencies was present,
and Troutt did not commit his obvious direct contempt until
his failure to appear at the hearing on the criminal con-
tempt charges. We conclude that Troutt is entitled to a new
contempt proceeding that complies with the requirements
of Rule 42(a), including the assignment of a different
presiding judge.
  In conclusion, we address briefly some remaining points.
First, on remand the court should consider carefully
whether writing vituperative letters is a form of contempt,
or if instead it is professional misconduct better ad-
dressed in a disciplinary proceeding. Second, because the
question of penalty is a serious one, we conclude with a
word about that. We read § 401 to permit either a fine, or
imprisonment, or both, as a penalty for criminal contempt,
but not to permit any other penalty. Thus, suspension from
the bar of the court is not one of the measures the court
may adopt to address the criminal contempt. This does
not mean that Troutt has acquired some immunity from
that fate, of course. It simply means that the court
must follow the procedures outlined in its Local Rule 83.4,
No. 04-4212                                                 13

which sets forth its Rules of Disciplinary Enforcement, if it
concludes on remand that disciplinary action is either
preferable to criminal contempt proceedings or should
be undertaken in addition to those proceedings.


                             III
  We caution Troutt that he has a professional duty to
conduct himself courteously before all courts. See, e.g.,
Standards for Professional Conduct within the Seventh
Federal Judicial Circuit, section 2. Some of the language in
his brief to this court did not measure up to those stan-
dards. Troutt is mistaken if he thinks that he is entitled to
meet a judge’s use of intemperate language (if and when
that occurs, and we make no finding about this particular
case) with mud-slinging of his own. There are other reme-
dies for alleged judicial misconduct, as the district court has
already reminded him. We trust that he will comport
himself appropriately on remand, and that he will receive
a fair hearing before the district court.
  The judgment of the district court is REVERSED and the
case is REMANDED for further proceedings consistent with
this opinion.
14                                        No. 04-4212

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—8-21-06
