USA v. James Kimsey
Filing
FILED OPINION (MARSHA S. BERZON, JAY S. BYBEE and JAMES L. GRAHAM) REVERSED. Judge: MSB Authoring, FILED AND ENTERED JUDGMENT. [8060864]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES KIMSEY,
Defendant-Appellant.
No. 10-16800
D.C. No.
2:08-cv-00635PMP-GWF
OPINION
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted
August 31, 2011—San Francisco, California
Filed February 8, 2012
Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges,
and James L. Graham, Senior District Judge.*
Opinion by Judge Berzon
*The Honorable James L. Graham, Senior District Judge for the U.S.
District Court for Southern Ohio, Columbus, sitting by designation.
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COUNSEL
Daniel G. Bogden, United States Attorney, Robert L. Ellman,
Appellate Chief, District of Nevada, Peter S. Levitt (argued),
Assistant United States Attorney, Las Vegas, Nevada, for
plaintiff-appellee United States of America.
Franny A. Forsman (argued), Federal Public Defender, Las
Vegas, Nevada, for defendant-appellant James Kimsey.
OPINION
BERZON, Circuit Judge:
James Edward Kimsey (“Kimsey”) has in the past engaged
in the unauthorized practice of law as well as other dishonest
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activities involving the legal system. Alluding to his recent
exploits, the government characterized Kimsey as a charlatan.
Whether that is so or not, our legal system does not punish
people simply because they have been proven unscrupulous in
the past and are continuing to engage in dubious activities.
That is why “the government may not . . . prove that the
defendant is a bad person, simply to show that in all likelihood he acted criminally on the occasion at issue.” United
States v. Martinez, 182 F.3d 1107, 1111 (9th Cir. 1999).
Rather, the legal system punishes people for proven violations
of specific laws.
In the case before us, Kimsey was convicted of criminal
contempt of court in violation of 18 U.S.C. § 402. The contemptuous act for which the district judge convicted Kimsey,
who is not a lawyer, was the “ghostwriting” of eight pleadings
for a pro se litigant in a civil lawsuit. Section 402 provides
that any person who willfully disobeys a “rule . . . of any district court” shall be prosecuted for contempt if the contumacious act also constitutes “a criminal offense . . . under the
laws of any [s]tate.” 18 U.S.C. § 402. The district court premised Kimsey’s § 402 conviction on its finding that Kimsey
violated (1) Local Rules IA 10-1 and 10-2 of the U.S. District
Court of Nevada, which govern the admission of attorneys
seeking to practice law in the District; and (2) Nevada
Revised Statute § 7.285, which prohibits persons from “practic[ing] law” if they are not members of the Nevada State Bar
or have not gained admission to practice pro hac vice.
Kimsey now appeals his conviction on four grounds, contending that: (1) he was denied his statutory right to a jury
trial; (2) he could not be prosecuted for criminal contempt
under 18 U.S.C. § 402 on the basis that he did not comply
with Local Rules 10-1 and 10-2; (3) § 7.285 is unconstitutionally vague as applied to him; and (4) he did not violate
§ 7.285. We reverse Kimsey’s conviction based on the first
two points and so do not reach the latter two.
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I.
Background
A.
“Ghostwriting”
In 2008, Frederick Rizzolo (“Rizzolo”) became embroiled
in a contentious, scorched-earth lawsuit, in which eighteen
lawyers bombarded each other and the district court with over
500 pleadings. Plaintiffs Kirk and Amy Henry (“the Henrys”)
initiated the suit after Kirk’s fateful visit to Rizzolo’s Crazy
Horse Too “gentleman’s club” in Las Vegas, where Kirk was
attacked so ferociously that he became a quadriplegic. The
Henrys sued Rizzolo and others for damages, and sought
attachment of assets that Rizzolo and his wife had allegedly
concealed through a collusive divorce and through various
cash transactions with third parties, involving millions of dollars.
On January 22, 2009, Rizzolo’s attorneys withdrew from
representing him. From then until October 6, 2009, Rizzolo
proceeded without an attorney. During that period, Rizzolo
initially filed documents that bore the stamp of a pro se litigant. For example, he submitted handwritten responses to
interrogatories, producing such answers as, “I don’t believe I
am an heir to any other persons [sic] will. But not sure.”
In July and August 2009, however, while still purportedly
proceeding without a lawyer, Rizzolo filed eight documents
that seemed to reflect somewhat more familiarity with the
legal system than had his initial pro se efforts. Those documents, styled as filed by “Frederick J. Rizzolo, Pro Se,”
sought, among other things, stays of discovery, dismissal,
summary judgment, and disqualification of the Henrys’ attorney. A number of the filings raised legal arguments and cited
precedent.
The Henrys’ lawyers received the first of these documents,
a motion to dismiss, by fax on July 9, 2009. Defending prop-
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erty transfers arising from Rizzolo’s Nevada divorce, the
motion advanced a series of contentions ranging from the supposed impact of Erie Railroad Co. v. Tompkins, 304 U.S. 64
(1938), to the applicability of the domestic relations exception
to federal diversity jurisdiction. The motion asserted, for
example:
Begay v. Kerr-McGee Corp., 682 F.2d 1311 (9th Cir.
1982), citing Erie Railroad Co. v. Tompkins, 304
U.S. 64, 82 L. Ed. 1188 (1938) (the “Erie doctrine”)
brings forth a central issue in this case. Should this
Court decline to dismiss for lack of personal and
subject matter jurisdiction under the heretofore
described theories of lack of complete diversity and
the domestic relations exception to diversity, then
the Erie doctrine requires that the federal court grant
or withhold relief as if decided by the state courts.
Jack DeGree (“DeGree”), the Henrys’ attorney, testified
that the bottom of the fax they received had a tag line that
appeared to identify the sender of the document as “Kimsey.”
Subsequently, DeGree received the official version of this
motion through the district court’s CM-ECF filing system.
This version included an appendix of exhibits, one of which
bore what appeared to be a computer file path containing the
name “James Edward Kimsey.”
Surprised by the motion and the more than 200 pages of
exhibits, DeGree contacted Rizzolo on July 22, 2009 to
request an extension of time for responding. DeGree found
the ensuing conversation “rather odd,” given his prior dealings with Rizzolo: In the past, Rizzolo had always been “very
agreeable” in phone conversations; this time, Rizzolo replied
that he wanted “to think about” DeGree’s request and would
return his phone call. About an hour later, DeGree did receive
a return call, but not from Rizzolo. Instead, the caller “identified himself as James on behalf of Rick Rizzolo.” James
refused to agree to any extension unless the plaintiffs agreed
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to a stay of discovery. Although James provided DeGree with
a return phone number at which he could be reached, he
would not reveal his last name when asked, either then or in
a later phone call DeGree instigated to decline the stay.
DeGree also asked James whether he was an attorney, a question that apparently hit a raw nerve. At that point James yelled
back, “I’m not answering your questions, Mr. DeGree.”
B.
“Ghost-busting”
Immediately after the second phone call with James,
DeGree contacted Dave Groover, a private investigator.
DeGree asked Groover to trace the phone number James had
provided, which turned out to be registered to “James E. Kimsey.” Given this information, as well as the faxed motion
bearing the name “Kimsey” and the exhibit with the file path
containing “James E. Kimsey,” DeGree and Groover ascertained that Kimsey was likely the “ghostwriter” of the documents filed by Rizzolo.
DeGree proceeded to file with the district court on the Henrys’ behalf a Motion to Reveal Pro Se Litigant Rick Rizzolo’s
Ghost Writer. He attached a declaration from Groover indicating that Kimsey was the probable author of Rizzolo’s pleadings. DeGree also attached records showing that Kimsey had
been convicted for unauthorized practice of law in Nevada in
1987.1 The motion requested that Rizzolo be required to
reveal the identity of the person who had authored the eight
documents he had filed during the previous two months.
At the hearing before a magistrate judge on the Henrys’
motion, Rizzolo appeared with his new counsel, Kenneth
Frizzell (“Frizzell”). Just before the hearing began, Groover
spotted Kimsey outside the courthouse. When Groover
1
Based on the same set of incidents, Kimsey had also been convicted
of forgery, perjury, conspiracy to commit perjury, and offering a false
instrument for filing, in violation of Nevada law.
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approached Kimsey to serve him with a subpoena, Kimsey
refused to take the document.
At the hearing, Frizzell acknowledged that Rizzolo had
used Kimsey’s services to prepare and file the eight documents. Addressing Kimsey’s actions, the magistrate judge
entered a written order finding that “Rizzolo had used the services of Mr. James E. Kimsey to prepare and file pleadings
with the Court.” “In doing so,” the magistrate judge determined, “Defendant Rick Rizzolo allowed a non-attorney to
determine the legal sufficiency of the instruments filed with
the Court and relied on Mr. Kimsey’s judgment in applying
legal knowledge to the specific issues pending in this action.”
Concluding, based on these findings, that Kimsey had
engaged in unauthorized practice of law on behalf of Rizzolo,
the magistrate ordered Rizzolo to cease using Kimsey’s services and struck the eight documents Kimsey had prepared.
Soon thereafter, the matter escalated into a criminal proceeding. The magistrate judge issued an order to Kimsey to
show cause as to why he should not be held in criminal contempt. Reiterating that Kimsey appeared to have engaged in
the unlawful practice of law, the magistrate judge requested
that the government prosecute Kimsey pursuant to Federal
Rule of Criminal Procedure 42(a)(2) for the alleged contempt.
See Fed. R. Crim. P. 42(a)(2) (“The court must request that
the contempt be prosecuted by an attorney for the government
. . . .”). In response to the request, the U.S. Attorney instigated
a prosecution of Kimsey for criminal contempt. The scope of
the prosecution was defined by the magistrate judge’s Order
to Show Cause, which constituted the sole charging document. The Order charged Kimsey with helping Rizzolo “prepare and file [the] eight pleadings,” stating that “it appears
that Mr. Kimsey’s actions as a non-attorney in preparing and
filing legal instruments constitutes the unauthorized practice
of law on behalf of Defendant Rick Rizzolo.” Based on these
specific alleged actions, the order charged Kimsey with violating:
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[(1)] The Local Rules of Practice of the United
States District Court for the District of Nevada[,
which] require that in order to be eligible to practice
before the District Court, an attorney must be admitted to practice before the Supreme Court of Nevada
or, if the attorney is appearing pro hac vice, that he
or she be a member in good standing and eligible to
practice before the bar of any jurisdiction in the
United States . . . [; and (2)] Nevada Revised Statute
(NRS) 7.285[, which] makes it unlawful for a person
to practice law in Nevada if the person is not an
active member of the State Bar of Nevada or otherwise authorized to practice law in Nevada.
See D. Nev. L.R. IA 10-1, 10-2; Nev. Rev. Stat. § 7.285.2
2
The text of Rule 10-1 provides, in relevant part:
In order to practice before the District . . . Court, an attorney must
be admitted to practice under the following provisions. An attorney who has been admitted to practice before the Supreme Court
of Nevada, and who is of good moral and professional character,
is eligible for admission to the Bar of this Court.
D.
Nev. L.R. IA 10-1(a)(1).
In addition, Rule 10-2 states, in relevant part:
An attorney who is not a member of the Bar of this Court, who
has been retained or appointed to appear in a particular case, may
do so only with permission of this Court. Application for such
permission shall be by verified petition on the form furnished by
the Clerk. . . . The petition shall state . . . [t]he court or courts to
which the attorney has been admitted to practice and the date of
such admission.
D.
Nev. L.R. IA 10-2(a), (b)(2).
Finally, § 7.285 sets forth, in relevant part, “A person shall not practice
law in this state if the person . . . [i]s not an active member of the State
Bar of Nevada or otherwise authorized to practice law in this state pursuant to the rules of the Supreme Court . . . .” Nev. Rev. Stat. § 7.285(1)(a);
see also Nev. Sup. Ct. R. 42 (regulating the “[p]ractice of attorneys not
admitted in Nevada”); Nev. Sup. Ct. R. 42.1 (regulating the “[p]ractice of
attorneys admitted in Nevada but not maintaining Nevada offices”).
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In his acceptance of service of the magistrate judge’s order,
Kimsey expressly reserved his right to a trial by jury. Nonetheless, Kimsey’s criminal contempt proceedings took the
form of a bench trial before the district court.
The testimony at trial established that Kimsey was not an
attorney, and that he did not hold himself out as an attorney
to Rizzolo. There was no evidence that Rizzolo had paid Kimsey for his services.
At the same time, the evidence also indicated that Kimsey
had provided Rizzolo with legal assistance so substantial as to
mimic those an attorney would offer. To test whether this was
so, the district judge questioned Rizzolo about the substance
of the pleadings he had filed under his name during July and
August 2009. With respect to the motion for summary judgment, for example, the judge asked, “What did you understand Rule 56 to encompass?” Rizzolo replied, “I don’t know.
I’ve read so many of these, your Honor.” The judge then
pressed, “[W]hat’s your understanding of the standard that
would have to be met for a party to be entitled to [s]ummary
[j]udgment upon a claim or a case?” Rizzolo’s response confirmed that he must have had little to do with the motion he
had purportedly filed:
I would have to read it and go back to look and see
what it was. . . . Summary [j]udgment would be that
we were asking that—you know, we would come in
here and based on—I don’t know what this particular
one is, but that, you know, we’re asking for you
basically—for a [s]ummary [j]udgment from you to
I believe it was to dismiss the case or whatever that
one was about.
Similarly, when the district judge questioned Rizzolo about
his motion to dismiss, which relied on the Erie and RookerFeldman doctrines, Rizzolo conceded that he had never read
Erie, 304 U.S. 64, Rooker v. Fidelity Trust Co., 263 U.S. 413
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(1923), or District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983).
After hearing Rizzolo’s testimony, as well as that of other
witnesses, the district court noted the difficulty of defining
what constitutes the practice of law: “we know it when we see
it or the courts know it when they see it.” Nevertheless, the
court concluded that “this clearly is a case that crosses the line
between simply providing assistance or offhand recommendations of looking at a particular case,” and summarized its findings of the services that Kimsey had provided Rizzolo as
follows:
Mr. Rizzolo, whether it’s through suggestions of others or just his own conjured up views on something,
raises with Mr. Kimsey, asks Mr. Kimsey if [t]here’s
a case or [to] research[ ] a particular point. Mr. Kimsey conducts the research. Mr. Kimsey writes an
argument, gives it to Mr. Rizzolo to analyze, review,
edit, whatever—factually correct certainly. And ultimately the [eight] products that are filed [in July and
August 2009] are documents the Court finds beyond
a reasonable doubt authored by Mr. Kimsey.
In support of these findings, the court noted that the eight documents “are clearly in the form of pleadings citing case
authority that had been researched, that had been structured or
formatted in a way to present legal arguments seeking specific
relief including dismissal of the claims against Mr. Rizzolo,”
and that Rizzolo responded affirmatively when asked,
“Wasn’t what you did with Mr. Kimsey what you did with
your attorneys?”
The court had “no difficulty” holding that Kimsey had violated Local Rules IA 10-1 and 10-2 of the district court, as
well as Nevada Revised Statute § 7.285, based on his role in
preparing and filing the eight pleadings. In addition, the court
relied on the following facts to find that Kimsey had willfully
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violated these provisions, as required for a conviction under
§ 402: Kimsey had been convicted of unauthorized practice of
law in the past; he had failed to sign the eight pleadings; he
had not “identif[ied] himself”; he had “refused to acknowledge his status”; and he had declined to receive service.3 After
concluding that “the factors set forth in [the magistrate
judge’s] Order to Show Cause . . . have been satisfied beyond
a reasonable doubt by the evidence,” the district court convicted Kimsey of criminal contempt under 18 U.S.C. § 402.
II.
Discussion
A.
Jury trial
We first consider Kimsey’s argument that the trial court
committed reversible error by disregarding his statutory right
to a jury trial and instead convicting him after a bench trial.
We review de novo the question whether Kimsey was entitled
to a jury trial under 18 U.S.C. § 402 and § 3691, see United
States v. Male Juvenile, 280 F.3d 1008, 1021 (9th Cir. 2002),
and decide that he was.
[1] Section 402 provides that any prosecution under that
provision must be carried out in accordance with § 3691.4
Section 3691, in turn, creates a statutory right to a jury trial
for those prosecuted under § 402:
3
Notably, the court did not conclude that these actions—that is, Kimsey’s failure to “identify himself” and his “refus[al] to acknowledge his
status”—themselves constituted violations of Local Rules 10-1 and 10-2
or unauthorized practice of law. Rather, the court listed these actions as,
together, supporting the determination that Kimsey had acted willfully in
violating Local Rules 10-1 and 10-2, by “suggest[ing] an awareness . . .
his intent, his willful conduct that what he was doing he knew he could
not lawfully do, and yet he intentionally went forward and did it.”
4
See 18 U.S.C. § 402 (“Any person . . . willfully disobeying any lawful
. . . rule . . . of any district court of the United States . . . shall be prosecuted for such contempt as provided in section 3691 of this title . . . .”).
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Whenever a contempt charged shall consist in willful
disobedience of any lawful writ, process, order, rule,
decree, or command of any district court of the
United States by doing or omitting any act or thing
in violation thereof, and the act or thing done or
omitted also constitutes a criminal offense . . . the
accused, upon demand therefor, shall be entitled to
trial by a jury, which shall conform as near as may
be to the practice in other criminal cases.
18 U.S.C. § 3691 (emphasis added). Although the right to jury
trial under § 3691 is contingent upon a “demand” therefor, the
statute does not specify that a defendant must “demand” a
jury trial in any particular manner or at any particular stage
of the proceedings. In his acceptance of service to the magistrate judge’s Order to Show Cause for why he should not be
held in criminal contempt, Kimsey explicitly reserved his
right to a trial by jury. This reservation constituted a “demand” for a jury trial in ordinary English, and nothing in
§ 3691 requires that we disregard it.
[2] Moreover, Federal Rule of Criminal Procedure 23
states that “[i]f the defendant is entitled to a jury trial, the trial
must be by jury unless: (1) the defendant waives a jury trial
in writing; (2) the government consents; and (3) the court
approves.” Fed. R. Crim. P. 23. Because Kimsey never
waived his statutory right to a jury trial, the district court erred
in conducting a bench trial rather than a jury trial.
The government contends that Kimsey was not entitled to
a jury trial because it was stipulated at Kimsey’s initial
appearance that he could not be imprisoned for more than six
months. Although this proposition is correct as a matter of
constitutional law, see Taylor v. Hayes, 418 U.S. 488, 495
(1974), Kimsey argues that he had a statutory right to a jury
trial. Because § 402 carries with it a maximum sentence of six
months, its reference to § 3691 would be entirely meaningless
if it did not create a right to a jury trial where defendants are
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sentenced to six months or less of imprisonment. The government’s contention therefore fails.
[3] Deprivation of the right to a jury trial constitutes structural error requiring reversal. Sullivan v. Louisiana, 508 U.S.
275, 281-82 (1993). Accordingly, we hold that the failure to
try Kimsey by jury mandates reversal of his criminal contempt conviction.5
B.
18 U.S.C. § 402
Although the conviction cannot stand for failure to provide
a trial by jury, we proceed to consider a second ground for
reversal—whether the district court properly held that Kimsey
could be convicted of criminal contempt under 18 U.S.C.
§ 402 because he violated Local Rules 10-1 and 10-2. The
answer to this question will govern whether there can be any
further proceedings on the criminal contempt allegations, and
so has consequences beyond reversal of the conviction for
procedural error. Under these circumstances, it is appropriate
for us to address the issue. See, e.g., United States v. Shetler,
___ F.3d ___, No. 10-50478, 2011 WL 6794021, at *8-*9
(9th Cir. Dec. 28, 2011).
Kimsey contends that he cannot be convicted under § 402
for violation of the Local Rules. We agree. We hold that
§ 402 does not permit convictions for criminal contempt for
violations of standing rules of court. Because we so conclude,
5
By reserving his right to a jury trial, Kimsey not only made an adequate “demand therefor,” 18 U.S.C. § 3691, but also adequately raised this
issue before the district court so as to merit de novo review on appeal.
Even if that is not the case and plain error review should apply because
Kimsey did not raise, during the trial itself, his statutory argument that he
was entitled to a jury trial, “ ‘[w]e only review for plain error or assess
whether an error is harmless when the error is not structural.’ ” United
States v. Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004) (quoting United
States v. Sanchez-Cervantes, 282 F.3d 664, 670 (9th Cir. 2002)).
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we need not reach the question whether Kimsey violated the
particular Local Rules alleged.
[4] Section 402, the federal criminal contempt statute
under which Kimsey was convicted, provides, in relevant
part, that a person is guilty of criminal contempt if he “willfully disobey[s] any lawful writ, process, order, rule, decree,
or command of any district court . . . if the act or thing so
done be of such character as to constitute also a criminal
offense . . . under the laws of any [s]tate.” 18 U.S.C. § 402
(emphasis added). Kimsey maintains, and the government
agrees, as do we, that § 402 requires that the same act violate
both a criminal statute and a district court “rule.” In finding
Kimsey punishable for criminal contempt under § 402, the
district court determined that Kimsey violated Local Rules IA
10-1 and 10-2 and Nevada Revised Statute § 7.285.
1.
Whether Rules 10-1 and 10-2 apply to nonattorneys
Kimsey contends that he cannot be lawfully convicted
under § 402 because he did not violate either Local Rule 101 or 10-2, the two predicate district court “rule[s],” on which
the district court premised his § 402 conviction. See 18 U.S.C.
§ 402; D. Nev. L.R. IA 10-1, 10-2. Local Rules 10-1 and 102 regulate the admission of attorneys to practice law before
the District Court for the District of Nevada. See D. Nev. L.R.
IA 10-1, 10-2. Rule 10-1 regulates the admission of attorneys
who are members of the Nevada Bar; Rule 10-2 regulates the
admission of attorneys who are not members of the state bar
to practice in particular cases, a limited admission sometimes
termed “pro hac vice.” See Black’s Law Dictionary 1331 (9th
ed. 2009). Kimsey argues that Rules 10-1 and 10-2 apply only
to attorneys and therefore do not apply to him, because he is
not a lawyer. See D. Nev. L.R. IA 10-1(a)(1) (“In order to
practice before the District . . . an attorney must be admitted
to practice under the following provisions.”) (emphasis
added); id. R. 10-2(a) (“An attorney who is not a member of
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the bar of this Court, who has been retained or appointed to
appear in a particular case, may do so only with permission
of the Court.”) (emphasis added). Although Kimsey might
very well prevail on this ground were it pertinent, on our reading of § 402, it is not. Kimsey could not be convicted under
that provision even if he violated the local rules.
2.
“Rule” within the meaning of § 402
[5] Neither § 402 nor Ninth Circuit precedent defines what
constitutes a district court “rule” for purposes of a § 402 contempt conviction. See 18 U.S.C. § 402. Both we and the Seventh Circuit have assumed, without directly addressing the
issue, that local court rules do qualify as such predicate “rule[s].” See United States v. Marthaler, 571 F.2d 1104, 1105 (9th
Cir. 1978) (affirming the defendant’s conviction for criminal
contempt, under 18 U.S.C. § 401, based on his violation of a
local court rule); United States v. Kozel, 908 F.2d 205, 208
(7th Cir. 1990) (same). However, “‘unstated assumptions on
non-litigated issues are not precedential holdings binding
future decisions.’ ” Proctor v. Vishay Intertechnology Inc.,
584 F.3d 1208, 1226 (9th Cir. 2009) (quoting Sakamoto v.
Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir.
1985)).
[6] In contrast, the D.C. Circuit has addressed the issue
(albeit without deciding it), suggesting that the term “rule”
does not include “general, standing rule[s] of court.” In re
Brown, 454 F.2d 999, 1006 (D.C. Cir. 1971). In interpreting
18 U.S.C. § 401, the sister provision of § 402,6 the D.C. Circuit reasoned:
6
Section 401 grants federal courts the power to punish “[d]isobedience
or resistance to its lawful writ, process, order, rule, decree or command.”
Compare 18 U.S.C. § 401, with id. § 402 (providing criminal sanctions for
the “willful[ ] disobe[dience of] any lawful writ, process, order, rule,
decree, or command of any district court”).
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Since every other directive which [§ 401] speaks of
—“writ, process, order, . . decree, or command”—is
one which is specifically addressed to a particular
person or group and one which traditionally has been
enforceable through the contempt power, it may be
that the “rule” to which [§ 401] refers is the rule in
the process sense—the rule to show cause, the rule
nisi, and the like—rather than a general, standing
rule of court, which usually draws its sanctions from
other sources.
Id. (emphases added); cf. United States v. Rose, 806 F.2d 931,
932 (9th Cir. 1986) (affirming the trial court’s holding that a
defendant was in criminal contempt, where the defendant “refus[ed] to testify after repeated warnings by the court”);
United States v. Powers, 629 F.2d 619, 621 (9th Cir. 1980)
(affirming a defendant’s sentence of imprisonment for criminal contempt, where the defendant “was told repeatedly that
his refusal to testify could result in a judgment of contempt
and a jail sentence”).
[7] There are several reasons why we conclude that the
D.C. Circuit’s suggestion is correct. The first derives from the
evolution of language over time, a not-infrequent source of
error in interpreting statutes of long-standing vintage. See,
e.g., Mitchell v. Helms, 530 U.S. 793, 839 (2000) (O’Connor,
J., concurring) (“[T]he evolution in the meaning of the term
[‘neutrality’] in our jurisprudence is cause to hesitate before
equating the neutrality of recent decisions with the neutrality
of old.”).
The original version of § 402 was passed as part of the
Clayton Act of 1914 and contained substantially the same language as the current version. Compare Clayton Act, ch. 323,
§ 21, 38 Stat. 730, 738 (1914) (“[A]ny person who shall willfully disobey any lawful writ, process, order, rule, decree, or
command of any district court . . . shall be proceeded against
for his said contempt as hereinafter provided.”) (emphasis
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added), with 18 U.S.C. § 402 (“Any person . . . willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court . . . shall be prosecuted for such
contempt as provided in section 3691 of this title . . . .”)
(emphasis added). In addition, the initial version of § 401was
passed as part of the Act of March 3, 1911, and included language similar to that found in the current version of both that
provision and § 402. Compare Act of Mar. 3, 1911, ch. 231,
§ 268, 36 Stat. 1087, 1163 (“[Federal courts] shall have power
. . . to punish, by fine or imprisonment, at the discretion of the
court, contempts of their authority: Provided, [t]hat such
power to punish contempts shall not be construed to extend to
any cases except . . . the disobedience or resistance . . . to any
lawful writ, process, order, rule, decree, or command of the
said courts.” (emphasis added)), with 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 . . . [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.” (emphasis added)).
[8] According to definition 3 of the noun “rule” in the
1910 version of Black’s Law Dictionary—the version published just one year before Congress passed the Act of March
3, 1911, and four years before it passed the Clayton Act—a
“rule” is “[a]n order made by a court, at the instance of one
of the parties to a suit, commanding a ministerial officer, or
the opposite party, to do some act, or to show cause why some
act should not be done.” Black’s Law Dictionary 1046 (2d ed.
1910). The same edition of Black’s defines the verb “rule” in
definition 1 as “to command or require by a rule of court; as,
to rule the sheriff to return the writ, to rule the defendant to
plead.” Id. This definition itself uses “rule” as a noun in a
manner consistent with Black’s definition 3 of the noun “rule.”7
7
The current Black’s no longer contains a definition of “rule” consistent
with definition 3 of the 1910 edition. See Black’s Law Dictionary 1446
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Similarly, according to definition 4(a) of the noun “rule” in
the Oxford English Dictionary (OED), a “rule” is “[a]n order
made by a judge or court with reference to a particular case
only; a ruling.” Oxford English Dictionary (3d ed. 2011)
(“OED”). While noting that this usage is now rare, the OED
goes on to quote from a news report of a fairly recent British
judicial decision that turned on the same language evolution
we face here. The article explained the use of the term in the
nineteenth century: “ ‘[R]ules’ were . . . a term denoting decisions or rulings by the judiciary on a case by case basis.” Id.
(second alteration in original) (quoting Law Report May 22
1991 House of Lords: Costs Automatically Follow Acceptance of Money Paid in Court, Times (London), May 22,
1991). The OED also provides an example of the usage from
a 1910 case: “Any violation of the judge’s rule in regard to
the sequestration is punishable as for contempt.” Id. (quoting
Thomas v. State, 67 S.E. 707, 708 (Ga. Ct. App. 1910)).8 As
(9th ed. 2009) (defining the noun “rule” as “[g]enerally, an established and
authoritative standard or principle; a general norm mandating or guiding
conduct or action in a given type of situation”).
However, the current version of Black’s does define the term “rule
nisi,” a compound term that appears to be derived from the outmoded
usage of “rule” discussed in the text. Specifically, Black’s defines “rule
nisi” as “decree nisi,” that is “[a] court’s decree that will become absolute
unless the adversely affected party shows the court, within a specified
time, why it should be set aside.” Id. at 472, 1448. The 1910 version of
Black’s defined “rule nisi” in a similar manner as “[a] rule which will
become imperative and final unless cause be shown against it. This rule
commands the party to show cause why he should not be compelled to do
the act required, or why the object of the rule should not be enforced.”
Black’s Law Dictionary 1047 (2d ed. 1910). The D.C. Circuit mentioned
the rule nisi as an example of how the term “rule” could have been used
to refer to courts’ directives to specific persons or groups. See Brown, 454
F.2d at 1006. As Black’s and Brown suggest, “rule nisi” is likely a surviving example of the usage of “rule” discussed in definition 3 of the 1910
version of Black’s. See Black’s Law Dictionary 1046-47 (2d ed. 1910).
8
Thomas held that where a witness has been purposely kept in the courtroom in disobedience of a judge’s sequestration order, either the person
who caused him to remain in the courtroom or the witness himself may
be punished for contempt. See 67 S.E. at 708.
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this last OED example confirms, the term “rule,” as used in
the first decades of the twentieth century—which is when
§ 401 and § 402 were originally enacted—could well have
referred to a judge’s edict in a specific case rather than general, standing court rules.
[9] Second, although standing court rules already existed
in the early twentieth century,9 and so, based on etymology
alone, it would not be inconceivable that § 402’s use of the
term “rule” referred to them, this possibility is severely undermined by the application of a basic canon of statutory interpretation: “The canon, noscitur a sociis, reminds us that a
word is known by the company it keeps, and is invoked when
a string of statutory terms raises the implication that the words
grouped in a list should be given related meaning.” S.D. Warren Co. v. Maine Bd. of Envt’l Prot. 547 U.S. 370, 378 (2006)
(internal citation and quotation marks omitted). Applying this
“commonsense canon . . . which counsels that a word is given
more precise content by the neighboring words with which it
is associated,” United States v. Williams, 553 U.S. 285, 294
(2008), demonstrates that of the two meanings of “rule”
extant in the early twentieth century, the meaning intended
was the one denoting a context-specific legal pronouncement,
rather than the one denoting a generally applicable regulation.
Within § 402, the term “rule” constitutes one of a “string of
statutory terms,” S.D. Warren Co., 547 U.S. at 378, each of
which most usually connotes a direct, situation-specific directive to a particular individual. See Black’s Law Dictionary
1747 (9th ed. 2009) (defining “writ” as “[a] court’s written
order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing
9
See, e.g., Equity R. 79 (1912) (“[T]he District Courts may make any
other and further rules and regulations for the practice, proceedings and
process, mesne and final, in their respective districts, not inconsistent with
the rules hereby prescribed, and from time to time alter and amend the
same.”).
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some specified act.”); id. at 1325 (defining “process” as “[a]
summons or writ, esp[ecially] to appear or respond in court”);
id. at 1206 (defining “order” as “[a] command, direction, or
instruction” or a “[a] written direction or command delivered
by a court or judge”); id. at 471 (defining “decree” as “any
court order”); id. at 304 (defining “command” as “[a]n order;
a directive”). “That several items in a list share an attribute
counsels in favor of interpreting the other items as possessing
that attribute as well.” Beecham v. United States, 511 U.S.
368, 371 (1994). Here, given that each of “the neighboring
words with which it is associated,” Williams, 553 U.S. at 294,
most commonly refers to a court’s directive to specific persons in a particular case, the term “rule” in § 402 should be
construed accordingly.
Finally, interpreting the term “rule” to include local court
rules would lead to absurd results, especially when § 402 is
read in conjunction with § 401. Section § 401 grants federal
courts the power to punish acts in contempt of the courts’
authority, and is thus closely analogous in purpose to § 402.
Compare 18 U.S.C. § 401, with id. § 402. As discussed above,
the two provisions employ identical lists containing the following terms: “lawful writ, process, order, rule, decree, or
command.” See 18 U.S.C. §§ 401, 402. Generally, “[w]hen
Congress uses the same language in two statutes having similar purposes . . . it is appropriate to presume that Congress
intended that text to have the same meaning in both statutes.”
Cooper v. FAA, 622 F.3d 1016, 1032 (9th Cir. 2010) (quoting
Smith v. City of Jackson, 544 U.S. 228, 233 (2005) (plurality
opinion)) (internal quotation marks omitted) (citing United
States v. Novak, 476 F.3d 1041, 1051 (9th Cir. 2007) (en
banc)). As this presumption is appropriate here, we must construe the term “rule” in the same manner under § 401 and
§ 402.
Section 401 authorizes federal courts to punish
“[d]isobedience or resistance” to their “rule[s],” without also
requiring, as does § 402, that the act violative of a “rule” also
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constitute a state criminal offense. See 18 U.S.C. §§ 401, 402.
If “rule[s]” encompass local court rules, then, under § 401, a
court would be able to fine or imprison attorneys for, let’s
say, failing to conform to local rules specifying the width of
margins, appropriate typeface, or kind of paper used for
pleadings. See, e.g., D. Haw. L.R. 10.2 (“All documents presented for filing shall be on white opaque paper of good quality . . . with one inch margins . . . .”); C.D. Cal. L.R. 11-3.1.1
(“A monospaced [type]face may not contain more than 10-1/2
characters per inch.”); C.D. Cal. L.R. 11.3.2. (“All documents
shall be submitted on opaque, unglazed, white paper (including recycled paper) not less than 13-pound weight.”). It is at
least exceedingly unlikely that Congress intended to authorize
convictions of criminal contempt for disobeying ministerial,
generally applicable requirements forbidding low-quality
paper or excessively small type.
Moreover, were “rule” read in this fashion, district courts
might be able to punish violations of their local rules with
contempt but not violations of the Federal Rules of Civil or
Criminal Procedure. Those federal rules are not rules promulgated by the punishing court itself—and, in that sense, are not
“its . . . rule.” See 18 U.S.C. § 401 (“A court of the United
States shall have power to punish by fine or imprisonment . . .
such contempt of its authority, and none other, as . . . disobedience or resistance to its lawful writ, process, order, rule,
decree, or command.”) (emphasis added). To avoid this
anomaly, perhaps one could view the national civil and criminal procedural rules as rules of each district court for purposes
of § 401 and § 402, even though the rules are not actually promulgated by each court. If so, we could start having criminal
contempt prosecutions for such trifling oversights as the omission of file numbers from the captions of pleadings, see Fed.
R. Civ. P. 10(a), and the failure of signing attorneys to include
their email addresses on motions, see Fed. R. Civ. P. 11(a).
Either way—whether the term “rule” in § 401 would allow for
criminal prosecutions, fines, and prison terms for violating
local district court standing rules but not the Federal Rules, or,
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instead, would permit criminal prosecutions simply for violations of the minutia of the Federal Rules of Civil or Criminal
Procedure, without any case specific directive or warning by
the district court—the results could be nonsensical.
[10] For these reasons, we hold that local court rules,
including Rules 10-1 and 10-2, do not constitute “rule[s]”
within the meaning of § 402 and thus cannot serve as predicates for criminal convictions under that statute. See also
Rewis v. United States, 401 U.S. 808, 812 (1971)
(“[A]mbiguity concerning the ambit of criminal statutes
should be resolved in favor of lenity.”). We therefore reverse
Kimsey’s conviction under § 402.
***
In a colloquy ascribed to Sir Thomas More and his daughter: More’s daughter urged her father to arrest someone, saying, “Father, that man’s bad.” More replied, “There’s no law
against that. . . . [G]o he should if he was the Devil himself,
until he broke the law!”10
Here, the government may have proven that Kimsey is, if
not the Devil, no saint. But it has failed to persuade us that
Kimsey was in criminal contempt under the applicable federal
statute.
For the foregoing reasons, we reverse Kimsey’s conviction.
REVERSED.
10
Robert Bolt, A Man for All Seasons 38-39 (Heinemann Educational
Publishers 1996) (1960).
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