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UNITED STATES v. BRISCOE

December 1, 1992

UNITED STATES
v.
LEONARD E. BRISCOE, LANCE H. WILSON, and MAURICE DAVID STEIER



The opinion of the court was delivered by: STANLEY S. HARRIS

RULE 42(a) ORDER OF CONTEMPT

 In conformity with Fed. R. Crim. P. 42(a), the undersigned hereby certifies that the conduct of Barry M. Levine, counsel for defendant Briscoe, as is set forth partially below, was committed in the actual presence of the Court and was seen or heard by the Court during the trial of this case, which began on September 29, 1992, and, as of the date of this Order, is still proceeding. Such conduct constituted criminal contempt.

 The Court recognizes that summary disposition under Rule 42(a) is an extraordinary power that must be reserved for "exceptional circumstances." Harris v. United States, 86 S. Ct. 352, 354-55 (1965). A court may invoke Rule 42(a) only when there has been an "actual obstruction of justice." In re McConnell, 82 S. Ct. 1288, 1291 (1962). Moreover, there must be a compelling need for an immediate remedy or time must be of the essence. United States v. Lowery, 733 F.2d 441, 447 (7th Cir. 1984) (citing United States v. Mochiano, 695 F.2d 236, 251 (7th Cir. 1982)). The Court had hoped that such an extraordinary sanction could be avoided in this case. Reluctantly, however, the Court found that despite its repeated attempts to persuade Mr. Levine to comply with its rulings, it had no option but to hold Mr. Levine in contempt. *fn1"

 As set forth below, Mr. Levine continually defied the Court's explicit and direct orders. The Court warned Mr. Levine repeatedly that he was, and is, required to adhere to the Court's orders. The Court further warned Mr. Levine repeatedly that should he continue blatantly to disregard the Court's rulings, he risked being held in contempt. Mr. Levine failed to heed these warnings and continued in his defiance of the Court. The Court finds that Mr. Levine's conduct obstructed the administration of justice. See Pennsylvania v. International Union of Operating Engineers, 552 F.2d 498, 509 (3d Cir.), cert. denied, Freedman v. Higginbotham, 434 U.S. 822 (1977) ("flouting a trial judge's commands is the essence of obstructing the administration of justice"); see also Lowery, 733 F.2d at 445; In re Gustafon, 650 F.2d 1017, 1020 (9th Cir. 1981).

 The Court finds that Mr. Levine's conduct was willful. Mr. Levine has many years of experience as a trial attorney, including experience as an Assistant United States Attorney. The Court gave numerous, unequivocal warnings that persistence in his course of conduct would result in a finding of contempt. Moreover, Mr. Levine should be aware of the well-established obligation of a trial attorney to obey all orders of the Court, even those that he may feel are incorrect. See Maness v. Meyers, 95 S. Ct. 584, 591 (1975) ("Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect."). Because Mr. Levine should have been aware that his conduct was wrongful, the Court infers that it was willful.

 The Court further finds that summary procedures are necessary in this case, in which there are three defendants and ten attorneys. *fn2" The Court held Mr. Levine in contempt as a last resort; no method short of contempt has been successful thus far. Unless the Court took a significant, immediate step to deter the misconduct of Mr. Levine, this already protracted and extraordinarily unpleasant trial, which is now entering its ninth week, risks becoming unmanageable; the Court concluded that Mr. Levine would continue to defy the Court as long as no sanctions were imposed. This Order is necessary to preserve order and justice in the courtroom, to protect this Court's authority, and to prevent a mistrial.

 The Court sets forth below specific examples of Mr. Levine's conduct that cumulatively precipitated the finding of criminal contempt. The Court cannot feasibly list every one of the numerous instances of Mr. Levine's misconduct, but instead lists only selected instances from the two weeks of trial immediately preceding the conduct that directly led to this contempt citation. *fn3" In particular, the Court lists those instances in which Mr. Levine persisted in a course of conduct in defiance of a previous ruling of the Court.

 In addition, the Court recites occasions where Mr. Levine has ignored the established rules of this courtroom. During the Court's pretrial conference off the record, the Court set forth its standard courtroom procedures. It instructed the parties, as it does in every case, not to argue objections from the well of the court. The Court believes that, among other reasons, such arguments are more often aimed at influencing the jury, rather than designed for aiding the Court. It also instructed the parties that if the nature of an objection was not apparent from the context, the Court would call counsel to a side bar discussion for an explanation of the objection. See Fed. R. Evid. 103. Moreover, the parties were instructed that if they did not understand the basis for an objection or a ruling, or if they wished to be heard on the objection, they could request to approach for an explanation and/or to put their positions on the record. Throughout these proceedings, the Court freely has allowed the parties to put their positions on the record. Nevertheless, as the following excerpts show, Mr. Levine repeatedly failed to follow these procedures.

 Because isolated quotations from a transcript can give only a partial view of Mr. Levine's conduct, the Court incorporates the entire record by reference as part of these proceedings. *fn4" The Court also notes the obvious: a written transcript cannot capture adequately the tone and behavior of Mr. Levine.

 I.

 On November 9, during his cross-examination of Mr. Dixon, Mr. Levine made arguments to the jury in the guise of cross-examination, and badgered the witness:

 Mr. Levine: So what you did was, you did the simple mathematical calculation. He paid 3 million. He got a loan of 4.2 million. The difference between the two is 1.2 million and he kept the 1.2 million as profit; is that correct, sir?

 A: Yes, sir.

 Mr. Levine: And that is what you told this jury last week and this week; isn't that correct, sir?

 A: Yes, sir.

 Mr. Levine: Now, sir, isn't that ridiculous?

 Mr. Gelber [AUSA; S.D. Fla.]: Objection.

 The Court: The objection --

 Mr. Levine: Isn't what you told this jury on its face ridiculous?

 Mr. Gelber: Objection, your Honor.

 The Court: The objection is sustained.

 . . . .

 Mr. Levine: So the proposition that he put the difference between the purchase price, $ 3 million and 4.2 in his pocket is on its face just ridiculous; isn't that true?

 Mr. Gelber: Objection, your Honor.

 The Court: The objection is sustained.

 Mr. Levine: As a matter of fact, you don't know what he did with that $ 1.2 million, do you? You don't know if he put it into the land; isn't that correct?

 A: He didn't put it into the land. I am pretty positive about that.

 Mr. Levine: You are pretty positive about that? You are pretty positive about this transaction, aren't you?

 Mr. Gelber: Objection your Honor.

 The Court: The objection is sustained

 Mr. Gelber: Your Honor, may we go to side bar?

 The Court: Yes, sir.

 (At the side bar.)

 Mr. Gelber: Judge, I don't object so much as to the substance. I objected twice. He asked earlier whether it was ridiculous. I believe you sustained it and then he went back and asked the question. Now he is engaging in banter with the witness. I have no problem with doing valid impeachment, if he has a basis to do it. I object to counsel merely asking questions which are so emotionally charged, argumentative and only are going to be sustained, that he is attempting to argue through the questions which he is continually doing. That is my objection.

 Mr. Levine: Your Honor, what the prosecution doesn't know about this loan is, in a word, appalling.

 The Court: You haven't attempted to follow up with some degree of rationality and order.

 Mr. Levine: I would like to do it my way, not his way. He put this misinformation in front of this jury. I intend to correct it, and if everybody pays attention very quickly they will learn what kind of appalling proposition the government advanced. Right now I'm there.

 The Court: Don't argue with the witness. Ask him questions. Develop them in a way that you well know how to develop properly.

 Mr. Levine: I do. The question that brought us to side bar was this question. You are pretty positive about this loan, aren't you. I want the answer to that question.

 Mr. Gelber: Well, actually, your Honor, that is an incredible question. Pretty positive about what? He is throwing out argumentative things with the question . . . .

 . . . He can talk like a lawyer, not attempt to argue to the jury his questions. He shouldn't have leeway to scream.

 The Court: I agree.

 Mr. Levine: I will move along quickly, your Honor.

 The Court: Without screaming, please.

 (Tr. 5910-5915).

 II.

 Later that afternoon, Mr. Levine attempted to get an exhibit into evidence through a witness who had stated on the stand that he had never seen the exhibit:

 Mr. Levine: I show you what has been marked as Defendant's 27, 28, and 29, Briscoe documents. 27 first. Is that not, sir, the closing statement for a --

 Mr. Gelber: Objection, your Honor.

 The Court: The objection is sustained.

 Mr. Levine: Do you recognize government -- excuse me, Briscoe 27 for identification?

 A: No, sir, I don't.

 Mr. Levine: You have never seen it before?

 A: I didn't say that. I just don't recognize it.

 Mr. Levine: Take your time and look at it.

 . . . .

 A: I just don't recall seeing this.

 Mr. Levine: Describe it, please.

 Mr. Gelber: Objection, your Honor.

 Mr. Levine: What is it?

 The Court: The objection is sustained.

 Mr. Levine: I show you what has been marked as government's number -- excuse me Briscoe 28 for identification. What's that called?

 A: It is entitled "Closing Agreement."

 Mr. Levine: What -- who are the parties.

 Mr. Gelber: Objection, your Honor.

 The Court: The objection is sustained.

 Mr. Levine: Look it over. Tell us if you have seen it before.

 (Pause.)

 Mr. Levine: Do you recognize that, sir?

 A: No, sir. I'm sorry. I don't.

 Mr. Levine: I show you now what has been marked as Briscoe Exhibit Number 29 for identification. Do you recognize that?

 A: I don't recall this as a contract that I have seen. I may have. I just don't recall, sir.

 Mr. Levine: You just don't recall. All right.

 Well, do any of these documents, 27, 28 or 29, Briscoe documents, refresh your recollection that the purchase price was --

 Mr. Gelber: Objection, your Honor.

 The Court: Mr. Levine, we will excuse the jury for lunch.

 After the break, the Court heard discussion on this issue outside the presence of the jury. The Court ruled that this line of questioning should not be continued.

 Mr. Levine: Your Honor . . . I would like to complete the cross-examination, at least for the time being, and then make some decisions as to whether or not we would want this witness to be held over or not, and I will just have to make that judgment, at least for Mr. Briscoe, when we complete the cross-examination.

 The Court: Well, you say complete the cross-examination. You keep ignoring . . . my rulings and the rules of evidence. You keep wanting to get evidence in through your testimony through a witness who hasn't seen documents that you have shown him. If that's your idea of cross-examination that you want to go through, I think we ought to talk about it before we bring the jury back in.

 Mr. Levine: Your Honor, I have, I think, a considerable amount of experience --

 The Court: There is no question about that which is what surprises me about the number of times this has happened.

 Mr. Levine: Your Honor, I think I am following the rules. I surely promise the Court that I endeavor to follow the rules. If my performance is not flawless, I ask for forgiveness. I think that the government has called a series of witnesses who are remarkable for what they do not know. . . .

 Now, they draw from these witnesses, with the Court's permission and over our objection, the speculation of these witnesses. What I want to do on cross is to establish that they have no knowledge, but, rather, they are speculating, and I think I can do that, and I think I am doing that within the rule.

 . . . .

 Now, I know, because I have obtained it from the closing files Briscoe Exhibits 27, 28 and 29 which directly refute this witness' testimony. I know that. I have it in my hand. I've shown it to the Court. I have given copies to the government and I have shown it to the witness. This witness said that this land was sold for $ 3 million. That is dead wrong. He is either lying or woefully misinformed.

 Now, we can dance about the rules any way this Court wants, but the fact is that what this jury has been told is wrong. That's the fact. The closing file belies that testimony, and the government has objected and the Court has sustained the government's objection with us telling the jury a fact that is irrefutable. This land was bought for $ 4.2 million and the money went to the seller. That is what happened.

 The Court: Do you understand you are not a witness in this case, Mr. Levine?

 Mr. Levine: Your Honor, I have the documents. This is a witness in the case, and if I were given an opportunity to cross-examine this witness within the rules I could establish that fact. . . .

 The Court: What rule are you relying on for your introduction of evidence that the witness doesn't know about it?

 Mr. Levine: This is part of Frontier's files, your Honor. This witness put in documents from Frontier's files. This is part of its files.

 . . . .

  The Court: You did ask the witness if he had seen these, and he said no, and then you have a proper mechanism for introducing this one whenever --

  Mr. Levine: Your Honor, I put it to the witness. The witness said no. How have I violated the rule by putting it to the witness and asking him questions about it? You know, what is shocking to me, your Honor, what's shocking and, frankly, appalling is that the government doesn't share my zeal to find out what happened. That's shocking. This is what happened, but they want us all to live myopically and not see what is the truth.

  The Court: Evidence comes in one piece at a time, Mr. Levine. You know that. One witness doesn't know everything that happened in a case. If they did we would have one witness on one side and one witness on the other.

  Mr. Levine continued to argue to the Court that his questioning of the witness was proper.

  The Court: Well, let's proceed, but I have tried to keep my admonitions and request, Mr. Levine, at the bench, at side bar, and I may have to caution the jury that what you are doing is in contravention of my rulings and I may have to refer this case, do some other action, whether it is contempt or referring it for discipline. We will just see. I don't know, but my rulings seem to be just uniformly violated by you as we go.

  Mr. Levine: I regret that your Honor has made that observation. Your Honor, I can tell this Court I have never intended to violate a single ruling or the spirit of that ruling. This case has been made very difficult for us, Your Honor. The government has sought and has obtained all kinds of restrictions on our ability to defend ourselves including the first order just before trial about limitations on issues that were relevant to this defense.

  I am trying to discharge my duty to the client as required by the canons, and I am trying to discharge my duty to the Court as its officer.

  The Court: There may well be a legitimate difference of opinion with respect to that. We will see what happens, but I would hope that -- you are a very experienced trial counsel and I would hope that you would conduct yourself the way you are supposed to.

  Mr. Levine continued to question the witness. After approximately 12 transcript pages of questioning, Mr. Levine returned to the documents that the Court had just ruled were inadmissible through this witness.

  Mr. Levine: Again, I show you what was marked --

  Mr. Gelber: Objection, your Honor.

  Mr. Levine: May I finish the question?

  The Court: Could we talk for a second, please. (At the side bar.)

  Mr. Levine: I have in front of me Briscoe Exhibits 27, 28, and 29. Does your Honor have a copy of it?

  The Court: Yes.

  Mr. Levine: 27 shows that at the closing --

  Mr. Gelber: Your Honor, if he could speak a little lower. He is very loud, and he tried once to get it in. He is trying again, and I don't want him to get it in through side bar.

  Mr. Levine: Maybe Mr. Gelber wants to try the case from both sides of the room. It shows -- it shows $ 4,184,184.98. That is approximately $ 4.2 million. That is the price for the 22 acres. That is it, and this has attached to it, your Honor, --

  The Court: We have covered all this.

  Mr. Levine: No, we haven't. . . . Now I am going to ask him if it refreshes his recollection . . . Now, why can't I do that?

  . . . .

  Mr. Levine: . . . [The document] rebuts the $ 3 million and the 1.2 in the pocket. It does that, and that is the truth, and anything we do -- to keep this from the jury is to hide then from the truth.

  The Court: I am not saying that you can't get it before the jury. The witness says he doesn't know about it.

  . . . .

  The Court: The objection is sustained. Let's move on, Mr. Levine.

  Mr. Levine: Has your Honor ruled that I cannot show him the document?

  The Court: Yes, sir.

  Mr. Levine: That was to authenticate. Now I want to refresh his recollection. That is the linguini issue. *fn5" Now I want to use it for a different purpose. I want to see if it refreshes his recollection. It is a different purpose. Before I wanted to lay a foundation to get it admitted into evidence. Now I want to refresh his recollection.

  Mr. Gelber: Judge, I have all the same objections I made before. This invites --

  Mr. Levine: I won't mention the content of the document.

  The Court: Let's just move on.

  (Tr. 5919-5958).

  III.

  During the afternoon session of November 12, at a side bar, Mr. Levine accused the Court of bias and lack of integrity:

  Mr. Levine: . . . The government comes up here with a grin, because they are comfortable with what this Court is going to do.

  The Court: I truly wish you would stop making statements like that, Mr. Levine. I don't know whether your intention is to seek to make me get cross with you -- Mr. Levine: Of course not.

  The Court: -- or try to make the record look as though you are being picked on unmercifully. I don't know why you keep making comments like that. I take one evidentiary -- make one evidentiary ruling after another. If I happen to think you are right, I rule in your favor.

  If I happen to think you are wrong, I rule against you.

  Mr. Levine: My observation is in close to eight weeks, anything we have brought up, we have lost.

  The Court: You have not made very good objections.

  Mr. Levine: Nor very good motions, because we have lost every single thing.

  The Court: You are perfectly entitled to make a record if you want . . . .

  (Tr. 6404-6405).

  IV.

  During the morning session of November 13, during Mr. Levine's cross-examination of the government's witness Mr. Kisteneff, the following exchange took place:

  Mr. Levine: On Monday afternoon I introduced myself to you; isn't that correct, sir?

  A: Yes, sir.

  . . . .

  Mr. Levine: Now, I encountered you again, did I not, on Tuesday morning, isn't that correct, sir?

  A: That is also correct.

  Mr. Levine: That occurred when you were coming into the courthouse; isn't that correct?

  A: Yes, sir.

  Mr. Levine: You were in the company of Mr. Roscoe Howard [Associate Independent Counsel]; isn't that correct?

  A: Yes, sir.

  Mr. Levine: And I asked you if I could spend 10 minutes with you to discuss this case, do you recall that?

  A: Yes, sir.

  Ms. Smith [Associate Independent Counsel]: Objection, your Honor.

  The Court: Could we talk at the side bar for a moment, please?

  (At the side bar.)

  Ms. Smith: I find this very irrelevant and he is trying to embarrass this man and the tone of voice concerns me.

  Mr. Levine: I have nothing to say to that absurd objection and I would like to move on.

  The Court: The objection is sustained.

  Mr. Levine: On tone? It is an aggressive tone and designed to be aggressive, and I intend to make this witness feel quite uncomfortable during the next hour of his life.

  The Court: The objection is sustained. This is totally irrelevant.

  Ms. Rogers [co-counsel for defendant Wilson]: No, no --

  Mr. Levine: Please, would you stop --

  Mr. Wells [lead counsel for defendant Wilson]: Excuse me, your Honor. He refused to talk to us. . . . the fact that he refused to talk to us is certainly something that shows bias.

  The Court: I am not sure that shows bias at all. . . . Let's get to the facts of what the case is about.

  Defense counsel continued to argue that the witness's failure to talk to them showed bias. The Court reiterated that the objection was sustained. Mr. Levine continued his questioning.

  Mr. Levine: We never did have that conversation did we, Mr. Kisteneff?

  Ms. Smith: Objection, your honor. Can we go to side bar, please?

  (At side bar.)

  Ms. Smith: Your Honor, you just instructed him not to get into that.

  The Court: Yes, maybe you didn't understand me, Mr. Levine.

  Mr. Levine: I changed the question, your Honor. It was a different question.

  The Court: Well, the first question you asked was on the line that I just basically sustained an ...


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