DefensesNegation of Essential Elements
It is generally agreed that some kind of wrongful intent is
to sustain a criminal contempt conviction. McComb v. Jacksonville Paper
Co., 336 U.S. 187, 191 (1949). See also Falstaff Brewing
v. Miller Brewing Co., 702 F.2d 770, 782-783 (9th Cir. 1983). There
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
from an accidental, inadvertent or negligent violation. Vaughn v. City
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
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
is required to satisfy the scienter element in a criminal contempt action.
See United States v. Fidanean, 465 F.2d 755 (5th Cir.),
denied, 409 U.S. 1054 (1972); United States v. Custer Channel Wing
Corporation, 376 F.2d 675, 680 (4th Cir. 1967), cert. denied, 389
850. That the acts were volitional and done with an awareness that they
unlawful shows a sufficient degree of intent, regardless of motive.
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
proposition that a specific or flagrant intent to violate a decree is
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
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
occurrence of the violative acts, ordinarily exonerates the defendant of
liability. In re Joyce, 506 F.2d 373; Yates v. United States,
F.2d 718, 723 (10th Cir. 1963). It is doubtful, however, whether either of
defenses could be successfully employed if the defendant were an original
as opposed to an aider and abettor, or if knowledge of a violation of the
could have been obtained through an exercise of reasonable diligence.
If the decree is ambiguous, the defendant may assert as a defense
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.
The "mistaken construction must be one which was adopted in good faith and
given the background and purpose of the order, is plausible." United
v. Greyhound Corp., 508 F.2d 529, 532 (7th Cir. 1974).
[cited in USAM 9-39.000]