Indirect Criminal ContemptNotice Under Rule 42(b)
the Rules of Criminal Procedure
An indirect criminal contempt action must be instituted pursuant to
notice requirements set forth in Rule 42(b) of the Federal Rules of Criminal
Procedure. It need not be instituted by a criminal indictment, Green v.
United States, 356 U.S. 165 (1958); consequently, the sufficiency of a
criminal contempt petition filed under Rule 42(b) is not to be tested by the
stringent standards set for an indictment. See Bullock v. United
States, 265 F.2d 683, 691-92 (6th Cir.), cert. denied, 360 U.S.
(1959). Furthermore, notice under Rule 42(b) need not be as precise or as
detailed as the certificate which the judge is required to prepare in a
contempt proceeding under Rule 42(a). See United States v.
Robinson, 449 F.2d 925, 930 n. 8 (9th Cir. 1971). Formal notice is not
required when the defendant has actual knowledge of the nature of the
proceedings. In re Sadin, 509 F.2d 1252 (2d Cir. 1975); United
v. Handler, 476 F.2d 709 (2d Cir. 1973). However, rather than risk the
possibility of misunderstanding, the notice requirements of Rule 42(b)
strictly followed. See Universal City Studios v. N.Y. Broadway
Corp., 705 F.2d 94 (2d Cir. 1983). Cf. United States v.
621 F.2d 1255, n. 7 (3d Cir. 1980), cert. denied, 449 U.S. 866
the event a defendant deems the charges made in the criminal contempt
to be too indefinite, his remedy is to move the court for a bill of
See Fox v. United States, 77 F.2d 210 (4th Cir. 1935),
denied, 298 U.S. 642 (1936).|
The petition under Rule 42(b) must satisfy the basic requirements
"fair notice." United States v. United Mine Workers of America, 330
258, 298-300 (1947). It must also state the "essential facts" constituting
criminal contempt charged. See United States v. J. Myers
260 F.2d 552, 557 (2d Cir. 1958), cert. denied, 358 U.S. 934 (1959);
Carlson v. United States, 209 F.2d 209, 218 (1st Cir. 1954). The
"criminal contempt" need not be used in the petition or rule to show cause,
long as the contemnor realizes that a criminal contempt prosecution is
contemplated. See United States v. Joyce, 498 F.2d 592, 595
Cir. 1974). Although verification of the petition may be based upon
and belief, United Mine Workers of America, 330 U.S. at 296, it is
considered good practice for the government to file an affidavit with the
petition. See National Labor Relations Board v. Arcade-Sunshine
Co., 122 F.2d 964, 965 (D.C.Cir. 1941).
Rule 42(b) of the Fed.R.Crim.P. requires that the notice allow a
"reasonable time for the preparation of a defense." A "reasonable time"
vary according to the circumstances of each case, but in no event can the
be reduced below the minimum needed adequately to prepare a defense.
Nevertheless, a short time can be sufficient time. See United
v. Hutchinson, 633 F.2d 754 (9th Cir. 1980); In re Sadin, 509
1252 (2d Cir. 1975); United States v. Hawkins, 501 F.2d 1029 (9th
cert. denied, 419 U.S. 1079 (1974); In re Lewis, 501 F.2d 418
Cir. 1974), cert. denied, 420 U.S. 913 (1975); United States v.
Alter, 482 F.2d 1016, 1023 (9th Cir. 1973).
When the contemnor's defenses raise complex legal issues or there
an indication that an evidentiary hearing may be required to resolve factual
issues, the five-day notice period prescribed by Rule 45(d) of the
should be adopted as the standard, absent a showing by the government of
compelling need to shorten the time and absent a showing by the contemnor of
reason why a longer time is needed to prepare a defense. Compelling need
reducing time is not shown merely by the fact that the alleged contemnor is
witness in a pending grand jury investigation. In re Vigil, 524 F.2d
(10th Cir. 1975), cert. dismissed, 425 U.S. 927 (1976);
Alter, 482 F.2d at 1023.
[cited in USAM 9-39.000]