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769

Defenses—Negation of Essential Elements

It is generally agreed that some kind of wrongful intent is required to sustain a criminal contempt conviction. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949). See also Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 782-783 (9th Cir. 1983). There must be a willful, contumacious, or reckless state of mind to warrant conviction for criminal contempt. In re Joyce, 506 F.2d 373 (5th Cir. 1975). Willfulness is defined as a deliberate or intended violation, as distinguished from an accidental, inadvertent or negligent violation. Vaughn v. City of Flint, 752 F.2d 1160, 1168 (6th Cir. 1985). The willfulness element of criminal contempt requires proof of a volitional act done by one who knows or should reasonably be aware the conduct was wrongful. Rojas v. United States, 55 F.3d 61 (2nd Cir. 1995).

In many cases it has been held that general criminal intent is all that is required to satisfy the scienter element in a criminal contempt action. See United States v. Fidanean, 465 F.2d 755 (5th Cir.), cert. denied, 409 U.S. 1054 (1972); United States v. Custer Channel Wing Corporation, 376 F.2d 675, 680 (4th Cir. 1967), cert. denied, 389 U.S. 850. That the acts were volitional and done with an awareness that they were unlawful shows a sufficient degree of intent, regardless of motive. See United States v. Patrick, 542 F.2d 381, 389 (7th Cir. 1976), cert. denied, 430 U.S. 931 (1977). On the other hand, authority exists for the proposition that a specific or flagrant intent to violate a decree is essential to a criminal contempt action. See United States v. Kelsey-Hayes Company, 476 F.2d 265 (6th Cir. 1973); In re Floersheim, 316 F.2d 423, 428 (9th Cir. 1963).

The lack of knowledge of the decree's existence at the time the defendant acted contrary thereto, or the lack of knowledge with respect to the occurrence of the violative acts, ordinarily exonerates the defendant of criminal liability. In re Joyce, 506 F.2d 373; Yates v. United States, 316 F.2d 718, 723 (10th Cir. 1963). It is doubtful, however, whether either of these defenses could be successfully employed if the defendant were an original party, as opposed to an aider and abettor, or if knowledge of a violation of the decree could have been obtained through an exercise of reasonable diligence.

If the decree is ambiguous, the defendant may assert as a defense that there was a lack of fair notice with respect to the proscribed conduct. See United States v. Wefers, 435 F.2d 826, 830 (1st Cir. 1970). The "mistaken construction must be one which was adopted in good faith and which, given the background and purpose of the order, is plausible." United States v. Greyhound Corp., 508 F.2d 529, 532 (7th Cir. 1974).

[cited in USAM 9-39.000]