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762

Indirect Criminal Contempt—Notice Under Rule 42(b) of the Rules of Criminal Procedure

An indirect criminal contempt action must be instituted pursuant to the 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 more stringent standards set for an indictment. See Bullock v. United States, 265 F.2d 683, 691-92 (6th Cir.), cert. denied, 360 U.S. 909 (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 summary 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 contempt proceedings. In re Sadin, 509 F.2d 1252 (2d Cir. 1975); United States v. Handler, 476 F.2d 709 (2d Cir. 1973). However, rather than risk the possibility of misunderstanding, the notice requirements of Rule 42(b) should be strictly followed. See Universal City Studios v. N.Y. Broadway International Corp., 705 F.2d 94 (2d Cir. 1983). Cf. United States v. North, 621 F.2d 1255, n. 7 (3d Cir. 1980), cert. denied, 449 U.S. 866 (1981). In the event a defendant deems the charges made in the criminal contempt petition to be too indefinite, his remedy is to move the court for a bill of particulars. See Fox v. United States, 77 F.2d 210 (4th Cir. 1935), cert. denied, 298 U.S. 642 (1936).

The petition under Rule 42(b) must satisfy the basic requirements of "fair notice." United States v. United Mine Workers of America, 330 U.S. 258, 298-300 (1947). It must also state the "essential facts" constituting the criminal contempt charged. See United States v. J. Myers Schine, 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 words "criminal contempt" need not be used in the petition or rule to show cause, so long as the contemnor realizes that a criminal contempt prosecution is contemplated. See United States v. Joyce, 498 F.2d 592, 595 (7th Cir. 1974). Although verification of the petition may be based upon information 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" will vary according to the circumstances of each case, but in no event can the time be reduced below the minimum needed adequately to prepare a defense. Nevertheless, a short time can be sufficient time. See United States v. Hutchinson, 633 F.2d 754 (9th Cir. 1980); In re Sadin, 509 F.2d 1252 (2d Cir. 1975); United States v. Hawkins, 501 F.2d 1029 (9th Cir.) cert. denied, 419 U.S. 1079 (1974); In re Lewis, 501 F.2d 418 (9th 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 is 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 Fed.R.Crim.P. should be adopted as the standard, absent a showing by the government of some compelling need to shorten the time and absent a showing by the contemnor of some reason why a longer time is needed to prepare a defense. Compelling need for reducing time is not shown merely by the fact that the alleged contemnor is a witness in a pending grand jury investigation. In re Vigil, 524 F.2d 209 (10th Cir. 1975), cert. dismissed, 425 U.S. 927 (1976); Alter, 482 F.2d at 1023.

[cited in USAM 9-39.000]