Latrice Westbrooks v. United States of America

Filing

UNPUBLISHED OPINION FILED. [09-60889 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 01/10/2011 [09-60889]

Latrice Westbrooks v. ase: 09-60889 Document: 00511327095 C United States of America

Page: 1 Date Filed: 12/20/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 20, 2010 N o . 09-60889 S u m m a r y Calendar Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f , v. V I N S O N ERIC WOODBERRY, D e fe n d a n t ,

L A T R I C E WESTBROOKS, A p p e lla n t.

A p p e a l from the United States District Court for the Southern District of Mississippi U S D C No. 5:07-CR-25-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* A t to r n e y Latrice Westbrooks, pro se, appeals the district court's order fi n d in g her in civil contempt of court and recommending that the Mississippi S t a te 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 F A C T S AND PROCEEDINGS T h is action stems from Westbrooks' representation of a criminal defendant in a drug conspiracy case. Westbrooks was retained by Vinson Woodberry to d e fe n d him in proceedings relating to his indictments on various federal and s t a t e charges for the distribution of crack cocaine. Woodberry was originally s c h e d u le d to face trial on the federal charges on June 3, 2008. After Westbrooks r e q u e s te d , and was granted, four continuances of the trial date, Woodberry r e q u e s te d a change of plea hearing and pled guilty to one count of distribution o f cocaine base in violation of 21 U.S.C. § 841(a)(1). The district court set s e n te n c in g for May 19, 2009. Westbrooks moved to continue the sentencing, and t h e district court reset sentencing for June 16, 2009. On Friday, June 12, 2009, a t 6:21 p.m., Westbrooks filed a motion to continue the June 16 sentencing. On M o n d a y , June 15, the district court contacted Westbrooks and informed her that t h e sentencing would not be continued. Westbrooks informed the district court t h a t she would not appear in court, and she did not appear. Due to Westbrooks' absence, the district court issued an order resetting W o o d b e r r y 's sentencing to July 2, 2009. Also in that order, it noted that W e s t b r o o k s "has not responded to the Presentence Investigation Report and has f a ile d to meet with the Probation Officer at a time previously scheduled." The c o u r t 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 p r e p a r e d to explain to the Court why she should not be held in contempt for fa ilin g to appear." The FPD contacted Westbrooks and offered his assistance. W e s t b r o o k s accepted the FPD's offer and informed him that she had not lodged a n y objections to the presentence report, that "she had other people that were n e e d in g trials and that Mr. Woodberry was going to be facing a long sentence a n y w a y ," and that she would not be attending the rescheduled July 2 sentencing d u e to a murder trial. The FPD then assumed representation of Woodberry and 2

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No. 09-60889 file d objections to the presentence report.1 Westbrooks did not notify the district c o u r t she would not appear on July 2. On July 2, represented by an assistant fe d e r a l public defender, Woodberry was sentenced to 57 months' imprisonment. T h e district court later gave Westbrooks notice of a contempt hearing and is s u e d a written order outlining specific issues that would be addressed. Several w e e k s later, the district court held a contempt hearing to determine whether W e s t b r o o k s should be held in civil or criminal contempt for her failure to appear a t the two sentencing hearings. Westbrooks appeared and was represented by c o u n s e l at the hearing. After receiving testimony from Woodberry, Woodberry's p a r e n t s , Federal Public Defender Dennis Joiner, and Westbrooks, the district c o u r t found Westbrooks in civil contempt of court. The court ordered Westbrooks t o pay $2,972.20 to the public defender's office as a compensatory civil contempt s a n c t io n as reimbursement for expenses it incurred representing Woodberry.2 I t also "recommend[ed] that this matter be sent to the Mississippi State Bar for fu r t h e r investigation, and possible disciplinary action, as to the adequacy of the le g a l representation provided to Woodberry and the credibility of the billable h o u r s 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 a p p e a le d . S T A N D A R D OF REVIEW " W e review contempt orders and sanctions imposed thereunder for an a b u s e of discretion. We review the district court's underlying findings of fact for

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. 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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No. 09-60889 c le a r error and its underlying conclusions of law de novo." Whitcraft v. Brown, 5 7 0 F.3d 268, 271 (5th Cir. 2009) (quotations omitted). T h e district court's recommendation of referral to the Mississippi State B a r for potential disciplinary action is not, standing alone, appealable. This c o u r t, however, has taken an expansive view of appealability, allowing appeals w h e r e there has been a finding of judicial misconduct, even absent an official r e p r im a n d . See, e.g., Walker v. City of Mesquite, 129 F.3d 831, 832 (5th Cir. 1997) (a llo w in g attorney to appeal where he was admonished by trial judge because t h e court was "persuaded beyond peradventure that one's professional r e p u t a tio n is a lawyer's most important and valuable asset."); see also In re P r o E d u c a tio n Int'l, Inc., 587 F.3d 296, 299 n.1 (5th Cir. 2009) ("[A]n attorney's r ig h t to defend his or her professional reputation confers Article III jurisdiction fo r purposes of appeal."). Because the district court's recommendation that the s t a t e bar investigate Westbrooks for possible disciplinary action also contains fa c t u a l findings related to whether she provided adequate legal representation t o Woodberry that negatively impact her professional reputation, we hold the r e c o m m e n d a t io n appealable. "[W]e review the district court's factual findings of a t t o r n e y misconduct only for clear error." Ibarra v. Baker, 338 F. App'x 457, 460 (5 t h Cir. 2009). "Giving due regard to the opportunity of the district court to ju d g e the credibility of the witnesses, we will deem the district court's factual fin d in g s clearly erroneous only if, based on the entire evidence, we are left with t h e definite and firm conviction that a mistake has been committed." United S ta te s v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007). D IS C U S S IO N I. C iv il Contempt C iv il contempt requires "clear and convincing evidence that (1) a court o r d e r was in effect, (2) the order required specified conduct by the respondent,

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No. 09-60889 a n d (3) the respondent failed to comply with the court's order." United States v. C ity of Jackson, 359 F.3d 727, 731 (5th Cir. 2004) (quotations omitted). "Our c ir c u it . . . has consistently held that good faith is not a defense to a finding of c iv il contempt." Id. at 735 n.25. "Judicial sanctions in civil contempt proceedings m a y , in a proper case, be employed for either or both of two purposes; to coerce t h e defendant into compliance with the court's order, and to compensate the c o m p la in a n t for losses sustained." United States v. United Mine Workers of Am., 3 3 0 U.S. 258, 303­04 (1947). "[S]anctions for civil contempt are meant to be `w h o lly remedial' and serve to benefit the party who has suffered injury or loss a t the hands of the contemnor." Petroleos Mexicanos v. Crawford Enter., Inc., 826 F .2 d 392, 399 (5th Cir. 1987). Although these sanctions normally "serve[] only t h e purpose of a party litigant," S. Ry. Co. v. Lanham, 403 F.2d 119, 124 (5th C ir . 1968), we have allowed recovery by nonparty victims of contumacious c o n d u c t where the relief can "be characterized as merely an incidental part of t h e main cause," City of Jackson, 359 F.3d at 736 (emphasis omitted). W e have little difficulty concluding that the district court did not abuse its d is c r e t io n in finding Westbrooks in civil contempt of court. There was (1) an o r d e r 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 s a t is fie d . See id. at 731 (establishing elements). Westbrooks argues, as she did b e fo r e the district court, that a finding of civil contempt is inappropriate because s h e did not act in bad faith and that her absences should be excused due to c o n flic ts with proceedings in another jurisdiction. We disagree. A s to her first argument, "good faith is not a defense to a finding of civil c o n t e m p t ." Id. at 735 n.25. And although Westbrooks repeatedly argues that her c o n flic tin g state court schedule justifies her absences, this argument misses the p o in t. "When an attorney fails to appear or makes a delayed appearance . . . the

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No. 09-60889 c o n d u c t which is subject to sanction is not the absence itself but the failure to p r o v id e sufficient justification for the absence or delay." In re Greene, 213 F.3d 2 2 3 , 225 (5th Cir. 2000) (quotations omitted) (holding that neither sanctions nor c r im in a l contempt are appropriate for an attorney who was twelve minutes late t o a hearing due to a recording error by the attorney's secretary). Westbrooks n e v e r notified the court, opposing counsel, or her client, that she would not a p p e a r at the second sentencing hearing. Irrespective of whether or not her ju s tific a t io n for the absences are sufficient, her failure to timely provide the c o u r t with such information is simply inexcusable.3 Westbrooks' eleventh-hour m o t io n to excuse her presence at the first sentencing hearing was denied, and s h e failed to formally notify the court of her intention to skip the second s e n te n c in g hearing. This is not a case of attorney negligence or a single isolated incident. Cf. I n re Adams, 505 F.2d 949, 950 (5th Cir. 1974) (vacating conviction for criminal c o n t e m p t but allowing "further disciplinary proceedings related to this matter" w h e r e attorney negligently missed a court appearance). Unlike the attorney in G r e e n e , Westbrooks made a conscious decision to disregard two orders of the d is t r ic t court. "Contempt results only from the lack of a good reason for the la w y e r 's absence. No contempt has been committed if the absence is excusable b e c a u s e it was occasioned by good cause." United States v. Onu, 730 F.2d 253, 2 5 6 (5th Cir. 1984). In Onu, an attorney who was also a member of the Texas s t a t e senate represented a criminal defendant. Id. at 254. The attorney agreed t o a pretrial conference date and then sought a last-minute continuance of the conference because of a previously scheduled legislative session, which was

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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No. 09-60889 d e n ie d . Id. at 254­55. The attorney did not appear at the conference and the d is t r ic t court held him in contempt. "The prosecuting attorneys were present and w e r e ready to proceed. A jury venire of thirty-five persons had been called." Id. a t 255. This court affirmed, holding that "the problem was created not by [the a t t o r n e y -s e n a to r 's ] attention to his state legislative duties but his carelessness c o n c e r n in g his responsibilities as a member of the bar of the federal court." Id. a t 258. W e s t b r o o k s ' failure to attend the sentencing hearings resulted in the w a s t e of the prosecutor's and the district court's time. As evinced by the lastm in u t e nature of her motion to continue the first sentencing hearing and her fa ilu r e to formally request that the district court continue the second sentencing h e a r in g , the problem was created not by Westbrooks' attention to her state court d u t ie s , but by her carelessness concerning her responsibilities as a member of t h e federal court bar. Accordingly, we AFFIRM the district court's holding of W e s t b r o o k s in civil contempt.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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No. 09-60889 II. R e c o m m e n d a t io n that the State Bar of Mississippi Investigate Westbrooks fo r Potential Disciplinary Proceedings I n addition to holding Westbrooks in civil contempt of court, the district c o u r t also found "evidence that Westbrooks failed to provide Woodberry with a d e q u a t e legal representation" and it "recommend[ed] that this matter be sent t o the Mississippi State Bar for further investigation, and possible disciplinary a c t i o n . " Woodberry, 672 F. Supp. 2d at 769­70. The district court reached its c o n c lu s io n by reviewing Westbrooks' billing records and comparing those records t o testimony received at the hearing. Id. at 770. It found that "Westbrooks' b illa b le hours are suspect because 36.9 hours [the total time Westbrooks spent o n Woodberry's case according to her records] multiplied by $ 250.68 [her a p p r o x im a t e billing rate] conveniently totals the exact amount paid to W e s t b r o o k s ($ 9,250.00) by Mr. and Mrs. Woodberry." Id. The district court also h ig h lig h t e d the fact that Westbrooks billed for time spent at the first sentencing h e a r in g -- t h e same hearing she did not attend. Id. Finally, it noted Westbrooks' fa ilu r e to attend the interview with the probation officer and her failure to a p p e a r at Woodberry's sentencing, finding that "Westbrooks effectively a b a n d o n e d [Woodberry] after the plea hearing and provided no further services." Id . U p o n this evidence, the district court did not clearly err in finding attorney m is c o n d u c t . Far from being "left with a definite and firm conviction that a m is t a k e has been committed," Trujillo, 502 F.3d at 356, we echo the district c o u r t's recommendation that the Mississippi State Bar investigate this matter for possible disciplinary action. We AFFIRM the district court's recommendation. C O N C L U S IO N T h e order of the district court is AFFIRMED in its entirety.

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