United States v. Harold A. Thoreen
653 F.2d 1332, 1981 U.S. App. LEXIS 18472 (1981)
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Rule of Law:
An attorney's unannounced substitution of a third party for a defendant at counsel table, undertaken without the court's permission or knowledge to create a misidentification, is not protected zealous advocacy and constitutes criminal contempt because it is misbehavior that obstructs the administration of justice.
Facts:
- Attorney Thoreen represented a commercial fisher, Sibbett, in a criminal contempt trial.
- In an effort to test the identifying government witness, Thoreen devised a plan without notifying the court or opposing counsel.
- Thoreen had a man named Clark Mason, who resembled Sibbett, sit next to him at counsel table dressed in outdoor clothing.
- The actual defendant, Sibbett, sat behind the rail in the spectator area wearing a business suit.
- During the trial, Thoreen gestured toward Mason as if he were the client, leading two government witnesses to misidentify Mason as Sibbett.
- Thoreen also violated the court's witness exclusion order by allowing Mason, whom he planned to call as a witness, to remain at counsel table.
- After the government rested its case, Thoreen revealed the substitution by calling Mason as a witness.
- The revelation forced the court to grant a recess and allow the government to reopen its case to properly identify the defendant, Sibbett.
Procedural Posture:
- During a non-jury trial in the U.S. District Court for the Western District of Washington, attorney Thoreen engaged in a defendant-substitution tactic.
- Following the trial, the district court ordered Thoreen to appear and show cause why he should not be held in criminal contempt.
- At the hearing, the district court found Thoreen in criminal contempt of court.
- The written contempt order was formally filed and entered on the court's civil docket.
- Thoreen (appellant) filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit eleven days after the entry of the order.
- The government (appellee) argued the appeal should be dismissed as untimely because it was filed one day after the ten-day deadline for criminal appeals.
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Issue:
Does an attorney's conduct of substituting a look-alike for the defendant at counsel table without the court's permission or knowledge, with the intent to cause a misidentification by witnesses, constitute criminal contempt?
Opinions:
Majority - Wright, J.
Yes. An attorney's unannounced substitution of a look-alike for a defendant at counsel table constitutes criminal contempt. While defense counsel must provide vigorous advocacy, this duty is limited by the law and the attorney's role as an officer of the court. Thoreen's conduct crossed the line from zealous advocacy to obstruction of justice because it impeded the court's search for truth, caused a material delay in the proceedings, and violated both court custom and a direct order excluding witnesses. The court found that the substitution was contumacious misbehavior under 18 U.S.C. § 401(1) because it was inappropriate, deceptive, and materially obstructed the trial. Furthermore, having Mason, a planned witness, remain in the courtroom violated the exclusion order, providing separate grounds for contempt under § 401(3). The requisite intent for contempt does not require a malicious motive but is met if an attorney knows or reasonably should be aware that their conduct hinders the search for truth.
Analysis:
This decision clarifies the boundary between permissible zealous advocacy and punishable criminal contempt. It establishes that deceptive trial tactics, particularly those involving misrepresentations to the court without prior approval, are not protected. The ruling reinforces that an attorney's duty of candor to the tribunal can supersede strategies designed to test the prosecution's evidence. This case serves as a significant precedent warning defense attorneys that clever in-court schemes that mislead the court and disrupt proceedings can lead to sanctions, regardless of their purported strategic purpose.
