United States v. Guadalupe Contreras-Ruiz , 357 F. App'x 799 ( 2009 )

FILED
NOT FOR PUBLICATION NOV 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10270
Plaintiff-Appellee, D.C. No. 2:07-cr-00005-NVW-1
*
v. MEMORANDUM
GUADALUPE CONTRERAS-RUIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted August 31, 2009 **
San Francisco, California
Before: B. FLETCHER, and KLEINFELD, Circuit Judges, and DUFFY, ***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
Guadalupe Contreras-Ruiz appeals a final judgment and sentence of three
months of imprisonment for criminal contempt in violation of 18 U.S.C. § 401 entered
by the United States District Court for the District of Arizona pursuant to the summary
contempt provision of Rule 42(b) of the Federal Rules of Criminal Procedure. The
three-month sentence for contempt was contained in the same judgment as Contreras-
Ruiz’s conviction and sentence for reentry after deportation. Though he appeals from
the entire judgment, his arguments are directed solely to the summary contempt
conviction and the sentence imposed for it.
On April 9, 2008, Contreras-Ruiz in a jury verdict was found guilty of reentry
subsequent to deportation. At his sentencing on June 2, 2008, Contreras-Ruiz
engaged in behavior that seriously disrupted the hearing. Specifically, he repeatedly
ranted that he would not be sentenced and shouted over the judge and other
individuals in the courtroom. After repeatedly warning Contreras-Ruiz that he would
be held in contempt if he did not stop this behavior, Judge Wake summarily held him
in contempt when he continued disrupting the proceedings. Judge Wake also
instructed the court reporter not to record the defendant’s further interruptions. In this
appeal, neither party has suggested that the failure to record appellant’s words affected
in any way his rights or the outcome of this case.
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A district court’s use of summary contempt procedures under F ED. R. C RIM. P.
42(b) is reviewed for abuse of discretion. United States v. Cohen, 510 F.3d 1114,
1119 (9th Cir. 2007). Where a district court did not fully consider the relative
appropriateness of summary and plenary adjudication of contempt, as here, this Court
must evaluate independently the need for summary procedures. United States v.
Glass, 361 F.3d 580, 587 (9th Cir. 2004) (citation omitted).
Courts have inherent power to punish contempt of their authority. Ex parte
Terry, 128 U.S. 289, 302-03 (1888). Criminal contempt is defined under 18 U.S.C.
§ 401:
A court of the United States shall have power to punish by fine or
imprisonment, or both, at its discretion, 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.
Federal Rule of Criminal Procedure 42 establishes two separate procedures for the
adjudication of contempt. F ED. R. C RIM. P. 42. Section (a) sets forth procedures for
disposition after notice. Id. 42(a). Section (b) sets forth procedures for summary
disposition of contempt. Id. 42(b).
Under F ED. R. C RIM. P. 42(b), a district court is authorized to:
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summarily punish a person who commits criminal contempt in its
presence if the judge saw or heard the contemptuous conduct and so
certifies . . . . The contempt order must recite the facts, be signed by the
judge, and be filed with the clerk.
Id. The requirement that the contempt be committed in the court’s presence is met
only “where all of the essential elements of the misconduct are under the eye of the
court [and] are actually observed by the court.” Pounders v. Watson, 521 U.S. 982,
988 (1997) (per curiam) (quotation omitted). In this case, the district court saw and
heard the contemptuous conduct and so certified. Further, the district court’s order
set out the contemptuous conduct in more than sufficient detail.
It is better practice for the judge to give the defendant a reasonable opportunity
to speak for a reasonable amount of time and to have it recorded, so that a reviewing
court can review the exact words. Nonetheless, the district court acted within its
discretion when it convicted Contreras-Ruiz using the summary contempt procedure
of F ED. R. C RIM. P. 42(b).
AFFIRMED.
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