United States v. McKenzie
United States v. McKenzie
Opinion of the Court
This is an appeal by private prosecutors originally appointed by the United States District Court for the Eastern District of Louisiana, 570 F.Supp. 578, from the judgment of the very court which appointed them. The judgment appealed from dismissed an application for an order requiring CBS to show cause why it should not be held in contempt and the judgment also dismissed the contempt proceeding initiated by the district court against CBS. The prosecutors allege appellate jurisdiction pursuant to the Criminal Appeals Act, 18 U.S.C. § 3731, which permits appeals “by the United States.”
The events leading to this appeal can be summarized briefly. On January 14, 1983, the defendants in United States v. McKenzie filed a motion seeking to enjoin CBS from broadcasting “60 Minutes” in the Dallas area on January 16, 1983, because a segment of the program involved the homicide investigation by New Orleans police which resulted in the prosecution in McKenzie of seven New Orleans police officers'
On January 16, 1983, CBS broadcasted the segment as scheduled. The district court then requested the United States Attorney for the Eastern District of Louisiana to institute contempt proceedings against CBS for refusing to produce the script for in camera inspection. On February 2, 1983, the judges for the Eastern District of Louisiana adopted a resolution asking the United States Attorney for that district to prosecute the criminal contempt action against CBS for noncompliance with the district court’s January 14, 1983, production order. On February 7, 1983, the district court initiated a new proceeding, In re CBS, Inc. Contempt of Court, 570 F.Supp. 578 (E.D.La. 1983). In “Findings and Keasons” formulated by the court in initiating its contempt action, the court stated that on January 14, 1983, it “adjudged” CBS to be in contempt of court
By letter of March 11, 1983,
On March 21, 1983, after receiving the Justice Department’s response to its request to prosecute CBS for criminal contempt, the district court for the Eastern District of Louisiana appointed private prosecutors to prosecute the criminal contempt.
Thereafter, the judge in McKenzie found himself to be disqualified; the Chief Judge of the district court for the Eastern District of Louisiana requested that this Court appoint a judge from another district to try the case; on May 6, 1983, this Court, upon the advice “that all judges in the Eastern District of Louisiana are disqualified,” appointed Judge Veron of the district court for the Western District of Louisiana. On May 18, 1983, the “new” district court for the Eastern District of Louisiana, i.e., Judge Veron, directed that the case be designated CBS Contempt Proceedings, 570 F.Supp. 578. After further briefing the district court held a hearing on July 20, 1983. On September 1, 1983, the “new” district court issued a well-considered opinion dismissing the application for an order to show cause. The court found that the production order was unconstitutional and
The peculiar posture of this case dictates its resolution. The private prosecutors allege appellate jurisdiction pursuant to the Criminal Appeals Act, 18 U.S.C. § 3731. This section permits appeals only “by the United States”.
The dismissal of the proceedings effectively revokes the prosecutors’ appointment. By adopting a false premise, namely that the court is divisible into chronologically distinct personalities, the prosecutors reach a faulty conclusion, to wit, that they represent the United States. The court does not find its expression in people — the court is the court. The prosecutors cannot reasonably argue that even after Judge Veron dismissed the action they still represent the district court for the Eastern District of Louisiana.
APPEAL DISMISSED.
. The prosecutors have styled this appeal United States v. CBS, Inc. The proceeding initiated by the district court was styled In re CBS, Inc., Contempt of Court.
. The McKenzie defendants’ trial was scheduled to begin in Dallas on February 7, 1983; the defendants contended that the broadcast would violate their sixth amendment right to a fair trial. The United States Department of Justice did not join in the defendants’ effort to enjoin the broadcast.
. In chambers that afternoon, an attorney with a local New Orleans firm who had originally stated that he represented CBS informed the court that CBS’ New York counsel’s instructions were that the New Orleans firm was not authorized to represent CBS. Shortly afterwards, another associate from the local New Orleans firm
. This Court later instructed the clerk’s office that the Court considered the petition to stay the production order to be moot and expected no further briefing by the parties.
. In separate appeals and mandamus proceedings now consolidated with the instant appeal, CBS challenged the validity of the district court’s January 14 and January 15 orders enjoining the broadcast. CBS concedes that the issues concerning the injunctions are now moot but urges that the validity of the production order is still a viable issue. Since the district court issued the January 14 injunctive order precisely because CBS had not complied with the production order, CBS asks this Court to review the production order in the appeal from the January 14 injunctive order. See Carter v. American Telephone & Telegraph Co., 365 F.2d 486, 488-89 (5th Cir. 1966), cert. denied, 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967) (where an order not itself appealable served as "the reason” for an appealable injunctive order, this Court reviewed the underlying order as part and parcel of the appealable order). CBS also filed a petition for writ of mandamus and prohibition seeking to set aside and prohibit enforcement of the January 14 production order.
In asking this Court to review the validity of the production order, CBS asks for an advisory opinion. The constitutionality of the production order is a moot issue. The appeals and mandamus proceedings in Nos. 83-3026 — 83-3029 are dismissed as moot.
. The transcript of the January 14, 1983, hearing makes no reference to an "adjudication” of criminal contempt.
. In threatening CBS with contempt proceedings on January 14, 1983, the court did not refer to CBS’ conduct concerning the authority of local counsel as one of the reasons for a contempt finding. The court referred only to CBS’ refusal to produce the script.
. CBS asked the district court to stay its February 7, 1983, order but the court has not acted on the request.
. A memorandum of March 7, 1983, reviewing the facts and the law, accompanied the March 11 letter.
. A criminal contempt prosecution survives even where subsequent events have mooted the basis for the district court’s order because the purpose of such a prosecution is to vindicate the court’s authority by punishing noncompliance with its orders. United States v. United Mine Workers, 330 U.S. 258, 294, 67 S.Ct. 677, 696, 91 L.Ed. 884 (1947).
. The private prosecutors alleged that their appointment was proper pursuant to Fed.R.Crim.P. 42(b). Citing Brotherhood of Locomotive Firemen v. United States, 411 F.2d 312 (5th Cir. 1969), CBS challenges the prosecutors’ appointment. CBS argues that although Rule 42(b) allows the appointment of private counsel to prosecute in criminal contempt cases, this Circuit permits only government law officers to prosecute the proceedings. Because of our disposition of this case, we need not address this issue.
. The court found that the order was a prior restraint violative of CBS’ first amendment rights and that less restrictive alternatives to the order had been available.
. 18 U.S.C. § 3731 provides in pertinent part: In a criminal case an appeal by the United States shall lie to a court of appeal from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
The section has been construed to apply to criminal contempt proceedings brought by the United States Department of Justice. United States v. Goldman, 277 U.S. 229, 235, 48 S.Ct. 486, 487, 72 L.Ed. 862 (1928); United States v. Sanders, 196 F.2d 895, 897 (10th Cir.), cert. denied, 344 U.S. 829, 73 S.Ct. 33, 97 L.Ed. 645 (1952).
. During oral argument before this Court the prosecutors argued that the court that found itself to have been treated contumaciously then recused itself and placed the issue before an arbiter. The prosecutors err in conceiving of the district court for the Eastern District as separate and distinct from the arbiter, Judge Veron.
Reference
- Full Case Name
- United States v. John E. McKENZIE, Dale Bonura, Stephen Farrar, Stephen Reboul, Ronald F. Brink, Thomas R. Woodall and Richard LeBlanc v. CBS, INC., Movant-Appellant. In re CBS, INC., Petitioner UNITED STATES of America v. John E. McKENZIE, Dale Bonura, Stephen Farrar, Stephen Reboul, Ronald F. Brink, Thomas R. Woodall and Richard LeBlanc v. CBS, INC., Movant-Appellant. In re CBS, INC., In re CBS, INC., Contempt of Court UNITED STATES of America v. CBS, INC.
- Cited By
- 5 cases
- Status
- Published