UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-4042

MICHAEL A. SCOTT,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge.

(CR-99-89, CA-99-180-2)

Submitted: April 25, 2000

Decided: June 19, 2000

Before WIDENER, WILLIAMS, and KING,

Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Michael A. Scott, Appellant Pro Se. Robert Joseph Seidel, Jr., Assistant United States Attorney, Norfolk, Virginia; Karin Fleming Richards, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,

Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Michael A. Scott appeals his conviction and sentence for contempt

of court in violation of 18 U.S.C. § 401(3) (1994). We find that the

district court erred by not appointing an independent prosecutor.

Accordingly, we vacate Scott's conviction and remand for further

proceeding.

Because criminal contempt is a crime, the defendant is normally

provided with fundamental procedural safeguards. See Young v.

United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798-99

(1987). "The procedures attendant to the prosecution of a criminal

contempt charge depend largely upon whether the conduct constitutes

direct or indirect contempt." United States v. Neal, 101 F.3d 993, 997

(4th Cir. 1996). Direct contempt is conduct that occurs "in open court,

in the presence of the judge, which disturbs the court's business,

where all of the essential elements of the misconduct are under the

eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent demoralization of the court's

authority before the public." In re Oliver , 333 U.S. 257, 275 (1948)

(internal quotation marks omitted). Direct contempt may be punished

summarily, without some of the procedural safeguards that attend a

criminal prosecution. See Fed. R. Crim. P. 42(a). "In a summary proceeding for direct criminal contempt, the otherwise inconsistent functions of prosecutor, jury and judge mesh into a single individual."

Neal, 101 F.3d at 997 (internal quotation marks omitted).

Indirect contempt is conduct that does not occur within the presence of the court and must be proved through the testimony of third

parties. See id. We stated in Neal that:

The inherent power of the court to punish indirect contempt

is limited because conduct occurring out of the presence of

 2
the court does not threaten[ ] a court's immediate ability to

conduct its proceedings. Thus, indirect contempt may never

be punished summarily, but rather requires adherence to

more normal adversary procedures.

Id. (internal quotation marks and citations omitted; alteration in original). We further stated that "[a]mong those procedures that are fundamental to our adversary system is the use of an independent

prosecutor to pursue charges against a criminal defendant. It is axiomatic that the prosecution of crimes is not a proper exercise of the judicial function." Id. We further stated that:

[t]he melding of the judicial and prosecutorial functions is

a fundamental error that undercuts the dispersion of power

among the branches and, as a result, casts doubt on the

integrity of the judicial process. To allow a district court to

investigate the matter, call the witnesses for the prosecution,

conduct the direct examination of them, and sit in judgment

of the defendant undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings.

Id. at 999-1000.

The charge of criminal contempt in Scott's case was a charge of

indirect contempt because the conduct giving rise to the charge

occurred outside the presence of the district court. We therefore find

that the court should have assigned an independent prosecutor to prosecute the charges. However, we find that the district court did not err

in denying Scott's motion to recuse.

Accordingly, we vacate the district court's judgment and remand

for further proceedings. The district court should appoint an independent prosecutor if it decides to pursue criminal contempt charges

against Scott. We also deny Scott's motion for a stay of further execution of sentence; he may take this matter up before the district court

on remand. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before the

court and argument would not aid in the decisional process.

VACATED AND REMANDED

 3