mr grant good morning your honor is and may please the court time christopher grown here are going on half of the appellant's michael leonard i'd like to take the sufficiency of the argument first because i think it is the most important one in this case even viewing the evidence in the light most favorable to the prosecution in this case which was the district court there is simply not enough evidence to sustain the content of fictions here under section four hundred one subsection one the evidence must show beyond a reasonable doubt bowl that mr leonard acted intentionally and that his actions amounted to a material obstruction of justice under for a one subsection three the evidence must show that mr leonard acted willfully and on the record before this court on the record the district court used the evidence is simply not sufficient  agree the district court judge could have imposed a sanction relative to either theoretically correct any notice to the district courts actually cited all three subsections one two and three and abandoned two in its opinion he was given noticeable three we will admit that turning to the material obstruction of justice there is no evidence that this file ation of the court's free trial waterhead any material effect on any part of this trial it was a fifteen second a ten second argument in closing that was a mediately objected to immediately sustained and mr leonard moved on and then the prosecution got a chance in its rebuttal argument to take care of that argument and present the issue that mr leonard could have called that witness again and in fact mr lennard in his own clothes again admitted that he could have called that witness on that record there is just no material obstruction of justice here on the intent issue and on the will for this issue again i don't think there was sufficient evidence a points out that the district court made a credibility determination essentially calling mr leonard a liar and while there is certain deference given to credibility determinations as the supreme court said and joe versus may would housing even credibility determinations he must be based on substantial evidence and there is no substantial evidence here there's essentially two possible theories of this series of this case there's the one that's a duck adopted by the district court that is mr leonard had this grand conspiracy to you know sandbag the prosecution by waiting until closing argument to give the ten second missing witness arguments and then he had been plotting to do it all along all of that in the heat of a federal trial really trying to rebut the government's opening closing argument in which the government mention the witness that was missing mr okasaki who was a codefendant dozens of times made a slip of judgment after preparing all night and mr leonard a veteran of over fifteen criminal trials in this district over three hundred federal cases overall as he testified and as his co counsel testified they'd been preparing all night that the  missing witness order was issued ten weeks prior it hadn't been an issue up until that point and in fact the argument regarding the missing witness that ten weeks prior was about entirely different witness it was sanyo was a hearsay declarant as part of the government's santiago prefer is that this court has held them in many occasions you're allowed to lay foundation in your cross examination of witnesses that have interviewed here in santiago prefers to argue that they fish here say to clarence testimony or pending testimony is not reliable that's one point i'd like to make second is when agent testified at the beginning of the case mr leonard rightfully expected the government to call mr opus on it as a witness he had already pled guilty in the case he had entered into a cooperation plea agreement with the government which called for his testimony and he appeared on the government's witness list based on that record any crew well defense counsel with think that that witness would be called and that leads me to a third point about the notice issues in this case or objection to the notice laid out by the district court isn't that it you know fail to state what the problem was it did it was the violation of the pretrial letter it wasn't that it failed to name the proper charge it did it's that at no point either in that notice or during the contempt hearing to the district court say what evidence it was going to rely upon the district evidence used against him if the if the district court had such an issue with that line of cross examination which apparently is the only thing the district court find in this record to support its theory it should have put the question to mr leonard either in the notice or when he was testifying on the stand he never got a meaningful opportunity to address that question like i just did for ya you know show me you do you think that all summary contempt procedures violate the constitution it seems clear that the district judge could have just banged the gavel and said mr leonard you are in contempt i'm finding you three hundred dollars he could not write on the spot that's what rule forty t b is about and i don't see any possible constitutional problem with that he couldn't have done that in this case one honor because there is no immediate need for a remedy well beside the fact that it's perfectly obvious that you have to immediately deal with the violation of order in limiting and with arguments being made to an ongoing jury rule forty two says you can do this rule  judge did immediately deal with it by substantially objection by excluding this one argument he might have dealt with it by declaring a mistrial that was the risk which he later emphasized i put this to one side your argument as i understand it is that rule forty two b is unconstitutional because the judge does not before banging the gavel in the case of a contempt in his presence does not announce what evidence he is relying on that with respect to the notice argument that is correct but my argument is however as you know the supreme court has upheld summary contempt and the consequence must be that the due process clause doesn't require a notice of evidence before a judge can hold a lawyer in contempt for misconduct in open court but who caused the necessary implication of upholding the summary contempt power correct contempt was not appropriate in this case subsection b could not be used in this case because this court's precedent and the supreme court's precedent says subsection b can only be used when there is a compelling need for an immediate rommany which there was not in this case there is no need for an immediate contempt remedy which is why the procedure was a need for an immediate remedy perhaps an immediate mistrial caused by a lawyers misconduct in trial that's all  required for summary contempt i do your and your understanding rule fifty rule forty two b might just as well be blanked out because you would say there's always a need for an immediate solution to the contemptuous conduct but there is never a need for immediate contempt there's often a need for an immediate attempt take them out there's a need for an immediate solution to the problem being caused by the contemptuous conduct but it is always possible in principle for the judge to say mr lennard you have caused a big problem for the call but i'll deal with you later let's deal with the trial now and on your view since it's always possible for a judge to say that rule forty two b can never be used that can't be right no that that is not what my argument is take lowry for example that is a case in which judge grady impose summary contempt on the spot for repeated violations of a pretrial order regarding permissible lines of cross examination and there was a need for an immediate contempt in that case because it offended the dignity of the court here there were no i don't get it there was a need for an immediate remedy was a need for an immediate solution to the problem the lawyers misbehavior was causing there was no need need to hold the lawyer in contempt at that instant it's just that the problem caused by the misconduct had to be solved right then and there now as i understand it that's the point for contempt if there is a problem that has to be solved right then and there and it's caused by intentional misconduct will forty to be can be used well then i go back to my point that there's not i don't understand how this has to do with the constitution if the summary if summary contempt is ever permissible that has to mean that it's consistent with the due process clause to hold somebody in contempt without any elaborate statement of evidence right isn't that a watchable implicate that is a logical implication but that doesn't mean that all process namely a hearing namely the appointment of a prosecutor as congress has mandated under rule a is should be swept away violation of section four one three the intent requirement for four one one as well as the willfulness requirement for one three are both satisfied by recklessness to both satisfied by a foul finding that there was willful disregard of what the court's order was here it cannot be disputed that mr leonard should have gone back and reviewed the order that the court had entered nor that he was familiar before the court order was ever entered in the first place with this concept and with the prohibition on making him use and witness argument for that reason there was more than ample evidence for the court to find that at a minimum he was reckless but in fact it was his tensional with respect to his violation of that order with respect to the material obstruction requirement for four a one one this court's decision and lowery is that is directly on point and resolves the question in lowery what the counsel did was exceeded the verdict of not not guilty cannot be reversed that that is an obstruction of justice the same thing happened here only later in the trial so both and then finally we talked a good bit about the credibility determination of course the court did have the advantage of seeing mr leonard mr honors counsel was given the ability to offer evidence in whatever procedure he preferred he came in and proposed that mr leonard would testify as well as that mr leonard's co this correct of course that there's a long history of using summary contempt for direct contempt contempt that occurred in the presence of the corps the court could have done so here and the court made the judgment that there was a compelling need to immediately respond to the con however the court taking a measured and appropriate response determined that rather than give such an immediate remedy it would it which would risk prejudicing the criminal defendant it would wait until after a trial a trial concluded closing argument concluded on friday on monday the court issued its order to show cause there certainly isn't a reason that the court could not and should not have given mr leonard the additional process that he did and given that he could have given him no process whatsoever there is reason to rule forty two or forty two special alternative procedures and the district judge didn't follow either one of them that's a problem surely no your honor it's not a problem i two courts have often applied an additional process beyond the minimum that's required in this court both in griffin and in lowery and larry the court said perhaps you should've applied a little extra process just because you're allowed to dispense with procedure doesn't mean you must do so and then encrypt and the court observed that the court had actually given more process than was required by the rules of course those were pretty the amendment but the fifth circuit even now has a rule that despite the requirements of forty two b for a finding of summary content with respect to the notice of the evidence to be used against him of course you're correct that it proves way too much and if that were the requirement then it would never be possible hold in direct contempt but in addition the court did say at the beginning of the process that he was taking judicial notice of the record and of course it was well known to mr leonard that the only evidence that the court would have to ascertain his the ten intent would be his testimony at the hearing and then what the judge had seen from mr leonard on the record over the course of the trial with respect to the so the motion for reconsideration or it was called a mission to vacate was ultimately filed and considered by the court apparently to nova after the finding of contempt and mr lennard took that opportunity to lay out in his motion to vacate specific arguments pertaining to every specific piece of evidence that the judge relied on the judge reaffirmed his order and found that none of that altered his view and so if there was any error in the amount of notice it was both harmless and in fact sure by the courts to move a review of its order with respect to government could have taught to him or had they chosen to do so his arguments that the government expected him to be called do not explain why that would have been particularly effective impeachment to input to imply that the court deferential both because none of these challenges were raised in the district court the district court asked mr lennard's counsel how he wished to proceed he proposed the process he asked me if he needed additional information regarding any of the charges mr learned counsel said no they had all the information that they needed and then proceeded to put on evidence that was not cross examined or in no contrary evidence was presented given that mr laird as a certain of these errors either invited the error or waived his complaint because he made a strategic decision to proceed without someone there cross examining him and pointing out the flaws in his statements with respect to the notice he had a minimum forfeited any further information on the notice because he told the four that he did not need any further information instead of a or b and i believe that when congress amended the rule in two thousand and two and said when you choose to provide notice of a hearing here's how you do it and it's in roll and it requires the appointment of a prosecutor i'd like to make to less park but the next question in sequence though is what's the harm if the district court could have used rule forty two b what's the harm from offering leonard an extra opportunity to explain himself because i don't think it was a meaningful opportunity to explain himself given the district court's ruling in this case and i think the but i wanted to be he didn't need to provide any opportunity  opportunity for explanation i said i do not think he was allowed to use rule where to bench where we i think that's where we come down to we need to decide that picture up it's simply because there was no compelling need for an immediate contempt that's the difference there there may have been a compelling need to could you could you tell me what in your view would be a case where there is a compelling need for an immediate contempt sanction as opposed to immediately soling  worst case for the use rule forty two because when you're talking about the dignity of the court it looks like the judges are european it's thank involved that it's a personal challenge and judges shouldn't decide cases where their personal challenge you know where their personal after buttes are on the line that's when you need rule forty to lead well i think that's exactly what happened here i think the district court judge took this is a personal challenge not look at i don't think you're understanding the nature of my quest fide as the core of the proper use of rule forty to be a class of situations that sounds like it would be inappropriate for the insulted judge to be the one making the decision you need rule forty two and a when the district court makes the decision then in there that there is no need to compel impose sanctions on the spot because the district court shows in this case i'd like to leave with this because you know this case is not about a three hundred dollar fine in a criminal case this case is about a lawyers reputation a lawyers reputation it's been on sullied for over twenty five years of practice and reputations matter this business but the criminal defense bar is extremely small reputations matter before courts it matters were before the government and it matters before clients yes thank you counsel mr johnson we appreciate your willingness and and that of your law firm to accept the role that we asked you to undertake as amicus curiae in the defense of the judgment thank you very much the case has taken