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ATION: 2003 FED App . 0403P (6th C ir.) File Name: 03a04 03p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

U NITED S TAT ES OF A MERICA , Plaintiff-Appellee,

v.

R ICAR DO A RREDONDO , Defenda nt-Appel

lant. X - - - -

> , - - N No. 02-1394

Appeal from the United States District Court fo r t he Ea st er n D is tr ic t o f M ic hi ga n a t B ay C it y. No. 89-20081—Robert H. Cleland, District Judge.

Argued: September 16, 2003
Decided and Filed: November 13, 2003
Before: BOGGS, Chief Judge; and KRUPANSKY and

CLAY , Circuit Jud

ges.

_________________ COUNSEL

ARGUED: Kev in M. S cha d, S CHA D & C OOK , In dian Springs, Ohio, for

Appellan

t. James A. Brunson, ASSISTANTU

NI TE D S TA TE S A TT OR NE Y, Ba y Ci ty, Michi gan, for

Appellee. ON BRI EF: Kevin M. Schad, SCHA D & COOK, I

ndian Spri

ngs, Ohi o, for Ap

pellant. 2 United States v. Arredondo No. 02-1394

James A

. Brunson, ASSISTANT UNI TED STATES ATTORNEY, Bay

City, Michigan, for

Appellee.

_________________ OPINION

_________________ BOGGS, Chief Judge. The district court he ld Ri cardo Arredondo incriminal contempt of court after finding that he gave fabricated

evidence of ineffective

assistance of counsel to support hi s petition f

or postconviction r

elief fr om a federal sentence for d

ru g trafficking. Mr. Arre dondo appeals from this contempt convict ion a nd from the district court’s accompany

ing denial of relief from his drug sentence. For the

reasons e xplained below, we reverse the conviction for contempt but affirm the denial of postconviction relief.

I

Arredondo was convicted in 1990 of three c ounts of distribution of heroi

nand conspiracy

to distribute heroin, and sentenced to 20 years in prison. I

n 1996, with the assistance of another inmate, he filed a pro se petition un der 28 U. S.C. § 2255 seeking relief

from the sentence. As relevant here
, the petitionasserted

that his appointed

attorney, Thomas Plachta
, provided constituti onally

ineffe ctive re

present atio n at sentencingby failing to c ommunicate two alleged government

plea offers to Arredondo for a ppro val. Arredondo claims he would have accepted either of the offers if given the chanc e, and wo

uld thereby have obtained a lighter sentence than the one imposed on him. However, he stated, Plachta “never advised [him] of any Plea Offer.”

Arredondo’s trial judge had fixed a pretrial dead line of August 27, 1990, after which no plea offers could be extended. It is u

ndispute d tha t Assistant United States Attorney Michael Hluchaniuk made one plea offer to Plachta before this d eadline, which would have involved aNo. 02-1394 United States v. Arredondo 3

recommended

sentenc e of five

to ten y ears, a nd that Pla

chta rejected this offer. The disputed

issue re gardin

g this offer is whether Plachta fir st communicated it to Arredondo for approval.

Arredendo’s petitionfurther alleged that Hluchaniuk made

a second offer of a ten-y

ear sentence to Plachta on the day of trial, an d that Plachta also rejected this offer without

co nv eyi ngit to his clie nt. Arre dondo supp orted this allegation with two affidavit s. One affiant, Maria Teney uque, stated that her sister Mary

Jane Dietrich(a

materia l witness in Arredon do’s trial) had overheard Plachta and Hlucha niuk discussing a plea before the trial. Ar redondo a lso filed h

is

ownaffida

vit testify ing that he had se en his law

ye r talking withHluchaniuk on the day of trial, and had seen Plach t a shake his head “no.”

Both Plachta and Hluchianiuk denied

that any second of

fer

was made. Pla

chta did not squarely deny

Arredondo’s claim that Plachta had faile d to commun ic ate the first offer. Instead, Plach ta fil ed an af fidav it st ating that he could not specific all y

remembe

r the eve nts of tha t day , but that “

my practice ha s a lw ays been to communicate any plea offer made by the prose cution to my

client re gardle ss of

my p ersonal view as to the merits of the offer.”

The district court denied Arredondo ’s Section 2255 petition withoutan evidentiary

hearing. Arredondo then retained a d ifferen tinmate paralegal to assist him and filed a pro se motion for

reconsideration of

the denia l, pursua nt to Fed. R. Civ

. P. 59(e). This motion was accompanied by a new affida vit from Arredondo that included new alle gations : that Arredondo had himself heard some snippets of the alleged plea conversation

between Plachta and Hluchaniuk on the day of trial, i nclud ing a re ferenc e to a ten-year sen tence. I n this affida vit, Arredondo stated that he had seen the prosec utor shake his head “no.” The new aff idavit a lso alleged that Plachta “a dv is ed ” A rr ed on do “i n w or ds ” o n t he da y of trial that he had rejected

a government

plea off er, in te nsion with 4 United States v. Arredondo No. 02-1394

1 W e held that t

he original s upporting affi davit accompanying t h e peti ti on (in which M s. Teneyuq ue repo rted hearing the lawyers d iscuss a second plea o ffer on the day o f trial) was ina dmiss ible as hearsay and imp laus ible on its f

ace, since the distri ct judge in questi on had a firm policy of ref

using to accept

any negot iate d pleas af ter t he pretr ial cut-off date. W e also rejected Arre don do’s seco nd affid avit as a p ossib le basis fora hear ing, be cause the co nversa tion sup pos edly over heard by Arredon d o was not newlydiscover ed evidence, and Arredondo had present ed no val id re ason for failing to inc lude it wit h hi s ori gin al pe ti ti on for relief.

2 We also hel d that

Arredondo should receive a hearing on his other ineffective assist ance claim regard ing counsel’s f ailure t o challenge the drug quan tity in the pre -sentenc e rep ort (P SR ). Arredondo
, 178 F. 3d at 789. the statement in the earlier affidavit that Plachta h ad “nev er advised” him of any offe

r. However, in the same paragraph of the secon d affidavit, Arredondo affirmed that Plachta neve r “made [Arredondo] aware” of a plea offe r prior to trial. I t is thus fa irl y clear

that by “made a

ware” Arredondo meant communicatingthe offer before rejecting it. The district court denied the motion for r e consideration and Arredondo appeale d to this co

urt.

We reversed in part and remanded for an evidentiary hearing on the petition. Arredondo v. United States , 178 F.3d 778 (6th Cir. 1999). We agreed with t he district court that Arredondo was not entitled to a he a ring on his allegations concerning

the supposed second plea offer. 1 Id. at 782-83 & n.3. However, we he ld th at he was entitled to a hearing on the circumstances surrounding the first plea off er. Id. at 789. 2

Inclosing, we noted that the inconsistent accounts in the affida vits of Plachta, Hluchaniuk, and Arredondo suggested that someone was not telling the truth:

Arredondo has lodged seriou s clai ms that att ack his attorney’s professional competence. I f true, his petition deserves our attention. ... If false, Arredondo hasNo. 02-1394 United States v. Arredondo 5

3 The cour t also rej ected a sep arate cla im of i neff ecti ve assi stance premised on co unsel’s failur e to ch allenge the PS R. A rr edondo has aba ndo ned this issue o n app eal.

4 At th e t ime of

the distr ict court proceedings, t he notice-and-heari ng procedure use d inArr edond o’s cont empt proc eedi ng w as f

ound at Fed. R. Cri m. P. 42(b). However, the r ule underw ent a te chni cal revi sion on December 1, 20 02. T he pr oce dure is now f ound at Fed. R. Cr im. P. 42(a). lied ina self-i ntereste d endea

vor that c ould

have caused unwarranted

disc ip line of his

attorne y. T he court s should notencourage such acti ons by refusin g to punish demonstr ably false c laims of ineffective ass istan ce of counsel.

Id. at 790.

The district court held an evidentiary heari ng on Arredondo’s petition on J a nuary 13, 2000. Ar redondo

re peated in court the alleg ations of his secon

d affida vit: Plachta had f ai led to secure his client’s permission to reject two plea of

fers , and Arredondo had personally heard fragments of the discussion concerning thesecond offer being discussed. Assistant Uni te d States Attorney Hlucha niuk again testified that

he made one plea off

er to Plac hta prior to the court deadline, but no second offer. Plachta testified that he d id not specifically re call the plea discussions i n Arredondo’s ca se, but tha t it was alwa ys h is practi ce to pass on such of

fers to h is clients for appr oval.

The district court denied Arredondo’s Section 2255 petit ion. It rejected his testimony about the existence of the second plea offer and about

P lachta’ s handling

of the fir

st offer. 3 The court went further, ordering a hearing on

whether Arred ondo had committed criminal contempt of court by knowingly off

ering false evidence to support his petition.

After briefing and a hearing

on the contempt

issue, pursuant to Fed. R. Crim. P. 42(a), 4 the court fo und Arre dondo gu

ilty 6 United States v. Arredondo No. 02-1394

of criminal co nte mpt and imposed a sentence of six months inprison, consecutive to his prior sentence, and a $3,000 fine. The court fo

und that A

rredond o had engaged in

a series of fabric a tions. It noted that Arredondo’s story had changed materia lly from his first affidavit to his second one: after the distric t court r ej ec te d t he Te ne yuq ue af fi da vi t a s h ea rs ay, Arredondo introduc ed an ass ertion tha t he had hea

rd part of the day-of

-trial plea discussion, withoutexplaining why this seemingly

important

fact wa s not inclu

ded in his f

irst affida vit. The court concluded that Arredondo’s second affida vit had “lea rned” f rom the te stimo ny that

had come

to light, suggesting a deliber ate fabrication. The court deemed the affidavit particularl y incredible in light of Hluchaniuk’s denial of making

any second p lea off

er. I t also discount ed Arredondo’s claim

that Plachta failed to pass on the first plea offer

. Dr awing on its own knowledge of Plachta’s “fastidi ous” work habits, the court found t hat he had duly passed on the first plea of

fer toArre dondo, and that Arredondo had simply

fabric ated his te stimo ny to the

co nt ra ry.
The district c ourt wen t on to hold t hat the f abrica tions it identified had sig nifi cantly obstructed the

administration of justice, thereby

amounting t o a c ont emp t o f co urt . It described Ar re do nd o’ s t es ti mo ny a s involving “egregious,” “blatant,” and “transpare nt ly false” perjuries. I t also noted that the perjured allegations of misconduct were int egral to Arr edondo’s Section 2255 petition – the postconvict io n litigation, which had consumed a significant a mount of judicial and public resources, had been founded c hiefly on falseho ods. Finally

, the cour t reasoned that Ar

redondo ’s false testi mo ny about Plac

hta had th

reatened to impos e unwarranted

professional discipline on an a ttor ney, which also revealed a

tendency to obstruct the administration of the justice system.

Arredondo timely

appeale d from t

he co ntempt conviction and the denial of postconviction relief.No. 02-1394 United States v. Arredondo 7

5 See Perr in v. Anderson , 784 F. 2d 1040 (10 th Cir. 1986) (testimony of five prio r incide nts in whic h the d efend ant respo nded violently t o the presence of unifo rmed polic e officer s, wit h pro ffer of three more incid ents, sufficed to estab lish “hab it” und er Fe d. R. E vid. 40 6); Uni te d States v. Flo ulis , 4 57 F . S upp . 1 350 , 1 355 n. 2 ( W.D. P a. 1978) (permitting the IN S to prove that defendant

had been inf

ormed of his ri ght to cont act his con s ulat e usin g evidence of INS’s routi ne off ice procedures). II

We find no basis for disturb ing the district court’s factual findi ngs that Arredondo willfully fa bricated the allegations about Plachta’s misconduct in his affidavit and or a l te st im on y. The record plainly supports the finding that Arredondo’s st atem ents about the alleged second plea off er
were willfully false; indeed, Arredondo has not meaning fully challenged

this conclusion. However, A rredondo does contest the finding that he lied

about Plac

hta’s fa iling to p ass
onthe first plea offer. While the evidence for this conclusion

was controverted , it w as sufficient to support the district court’s finding. Plac hta testified that he alway s passed on plea of fe rs to cl ie nt s. He ha d a lr ea dy r epresented five to fifteen criminal defenda

n ts in federal court at the time of Arredondo’s trial, an

d had unde

rtaken more representa

ti ons since then. I

n light of Plac hta’s expe rience , his habit testimony was admissible under Fed. R. Evid. 406 to show that he acted in conformity with that habit in this case. 5 We

canno t s ay the district court’ s decision to credit Plachta’s testimony about the first plea off er and i ts finding that Arredondo wi ll fu ll y f

abric ated his contrary

testimony were clearly errone ous, espe cially

in light of Arredondo’s established

lack of c

redibilit y in other ma

tters s uch as the second plea offer.

Thesefinding s eliminat

e the factual basis for Arrendondo’s claim that his counsel provided ineffective assistance by fa iling to pass on p lea off ers to him. Since tha

t is th e onl y ground on which A

rredond o has app eale dthe denia l of his 8 United States v. Arredondo No. 02-1394

6 An ele ment of

every contempt proceeding under 18 U.S.C. § 401(1) is proof tha t t he al lege d c ontemptuous conduct was “in . . . or . . . near” the presence of

the c ourt. Ibid. ; see Vaughn , 752 F.2d at 11 67. T his element is t o be underst ood “geographic al[l y], ” as requi ring phy sical pro ximity to the co urt’s pre sence

. Nye v. United States , 313 U.S. 33, 48- Section2255 petit

ion, we affirm the deni al of his petition without further discussion.

III

The remaining question is whether Arredondo’s fa lsific ations constitute d contempt of cour t under 18 U.S.C. § 401. The powe r to punish

contempt s is “inhe

rent in all courts,” Young v. U nited States ex rel. Vuitton et Fils S.A. , 481 U.S. 787, 795 (1987) (quotation marks omitted), allowing them to protect th em se lv es ag ai ns t a ss au lt s o n t he ir au th or it y. However, because this power may be exercised without many of the normal procedural protections of a c riminal tr ial, it is subject to constitutional and statutory limitations. A federal court has the power, co dified in 1 8 U.S.C. §§ 401 and 401(1), to punish “suchcontempt of its authority, and none other, as [th e fol lowing:] [m]isbehavior of any person in its presence

or so near thereto as to obstruct the administration of justice.” This statu tory langu age originated in the federal Act of 1831, and represented a “d

rastic curtailment of the contempt power” previously rec ognized. Bloom v. Illinois , 391 U.S. 194, 203 (1968).

The narrow

categ ory of conte mpts committ

ed “in the actual presence of the court” may be pun ished immediately by the judge who saw or heard theoffending conduct. Fed. R. Cr im. P

. 42(b). This summary powe r is reserved for “exceptiona l circumstances . . . such a s acts thr eatenin g the ju dge o r disrupting a hearing or obstructing cour t proceedings.” Vaughn v. City of Flint , 752 F.2d 1160, 1167 (6th Cir. 1985). Other contempts, which need only be “in or near” 6 the court’sNo. 02-1394 United States v. Arredondo 9

49 (1941) ( rever sin g cont empt conviction of petiti oners who used l iquor to coerce an infirm, elderly man int o filing letter s in federal distri ct court seeking to dismiss the man’s civ il act ion a gain st peti ti oners ’ f rie nd; coercive acti ons took pl ace over 100 mi les fr om the di stri ct court). I t may be questi oned whether Arredondo’s f

ili ng of f

alse a ffi dav it s was suffi ciently “near” the dist rict court to be punished as contempt. Our prec ede nts sugg est

tha t t he ans wer depe nds on whether the cour t was t hen in session

. See Sch midt v . Uni ted States , 124 F.2d 17 7, 177 (6th Cir. 1941) (hold ing that d efend ant’s filing of false pap ers with cle rk cou ld not be punished as contem pt, “since it does not ap pear that the co urt was i n session at the time .”). Neither party has disc ussed this issue. W e nee d no t resolve it, because in the evid entiary hear ing tha t f oll owed our

fi rst reman d, Arredon do orall y repeat ed in t he pres ence o f the court t he allegati ons contai ned in his written a ffidavits. We will ass ume without deci ding t hat Arre don do’s aff

idavits were a lso giv en “in or near” the court’ s presen ce, because as d iscusse d below, the y nev erthele ss f allouts ide t

he sc ope of conte mpt liability, as they d id no t o bs tru ct j ust ice wit hinthe meani ng of § 401. presence, must be adjudicated according to t he mo re developed

procedu re of Fe d. R. Crim. P. 42(a), the procedure followed in this case, which mandates noticeand an adversary hearin g. E ven so, the

Rule 42(a

) proce dure is “

pretty summary,”

United States v. Ob erhellman , 946 F.2d 50, 52 (7th Cir. 1991), since the offended judg e m ay initiate the proceeding without indictment, may imposesentence on the convicted co ntemnor, and, in a nonjury c ase like this one, may try the case himself. For this r eason, c ontempt lia

bility under Rule 42(a) should be “circu mscribed as narr owly as is consistent with the maintenance of order and de corum essential to the effective operation of the judicial system.” Id. at 53.

A witness’ s misconduct mus t “obstruc[t] the administration of justice ” in orde

r to be punishable as contempt. 18 U.S.C. § 401(1); Vaugh n , 752 F.2d at 1167. A

rredond o’s main argument for reversal isthat eve

n if he g ave know

ingly false

ora l and written testimony in support of his Section 2255 petition, this was le gally

insufficient

under the circumstances here to constitute an

obstr uction of ju stice

unde r § 40 1. We 10 United States v. Arredondo No. 02-1394

7 Indeed, the f

acts g iven bythe Supreme Court and in t

he lowe r
c ourt ’s opin ion, 14 6 F.2 d 62 7 (3 d C ir. 194 4), sug gest that M ichae l’s falsi ficati ons may ha ve be en self-ser ving. T he gra nd ju ry summ one d him in the cour se of “ a generalinves tig ation of fr auds agai nst t he United Sta tes.” Mic hael , 326 U.S. at 226. If the bankrupt’s as sets were being dissipated for imp rop er pu rpo ses, then M ic hael mi ght hav e faced indictm ent. rev iewthis mixed legal and factual question de nov o. Se e United States v. B aggett , 342 F.3d 536, 541 (6th Cir. 2003) (applying this standard of review to obstruction of justice enhancement under U.S. Sentencing Guidelines).

Two Supreme

Court decisions provide important guidance. In Ex parte

Hudgings , 249 U.S. 378 (1919), the Court granted

a writ of ha

beas cor pus to a federal witness who had been imprisoned

for contempt after giving impl ausible testimony that he could not verify the

handwri ting of h is own business partners. The Court held t hat “in or der to pun

ish perju ry in the presence of

the cour t as a conte

mpt there must be added to the essential elements of pe rj ur y . . . the further element of obstructionto the court in the performance of its duty .” Id. at 383 (emph asis a dded) . Caut ioni ng aga i nst “mista kenly attr ibut[i ng] a necessa rily inheren t obstructive eff

ect to fa lse swearing,”it emphasized the “p otentiali ty of oppression and wrong” that wo uld arise if courts could summarily

punish wi tnesses for giving testimony with which the court disagreed. Id. at 384.

The Court reaffirmed Hudgings in In re Michael , 326 U.S. 224 (194 5), upon which Arredondo principally relies. A gran d jury subpoenae d Michael, a bankruptcy trustee, t o testify about numerous checks that had been written from the bankrupt’s assets. He gave d irect, unequivo cal res

ponses to questions before

the gra nd jury, but the di str i ct court found that his answe

rs were lie s

. 7 The lower courts held Michael guilty of contempt, reasoning that he had “b lock[ ed] the in qu ir y” of the grand jury by giving false testimony

about the purposes of the checks. Id. at 229. The Supreme CourtNo. 02-1394 United States v. Arredondo 11

8 As the Fift

h Circui t has observed, i t may be ques tionabl e whether Essex corre ctl y i nter

pr e ted the scop e of 1 8 U .S.C. § 150 3. See United States v. Griffin , 589 F.2d 20 0, 204-06 (5 th Cir. 1 979). Essex used the Suprem e Cou rt’s § 401 conte mpt c ases to interpr et § 150 3, see 407 F.2d at 217 -1 8, yet

the operative provisi ons of these two st atutes are not t he

same. Section 40 1(1) p rohibits misb ehavi or that “obstr uct[s] t he admini str ati on of

justice. ” 18 U.S.C. § 40 1(1); see al so Vaughn , 752 F. 2d at 116 8. Se ction 1 503 pro hibits, am ong o ther kind s of co nduc t, un animously

reversed. It e

mphasized that the natur a l tendency of all false testimony is to mislead the finder of fact
, but this doe s not, as su

ch, rend er it con temptuous :
All perjured relevant testimony is at war with justice

s ince it may

produce a judgme

nt not resting on tr

uth

. Thereforeit cannot

b e deni ed that it tends to defeat the sole ultimate

objective of

a t ri al . It ne ed no t n ec es sa ri ly, however, obstruct

or halt the

ju dic ial process. For the functionof trial is to sift the truth fro m a mass of contradictory

evid ence, and to do so the factfinding tribunal must hear both truthful and false witnesses.

Id. at 227-28.

We applied Michael in United States v. Essex , 407 F.2d 214 (6th Cir. 1969), to reverse the obstruction of jus tice conviction of a wi tness who had file d a perju

red aff idavit. A fter th e t ri al co ur t d is be li ev ed Es se x’ s w ri tt en te st im on y that she had sexual relations with several jurors in th e trial of Jimmy Hoffa, s ee United Sta tes v. Ho ffa , 247 F. Supp. 692 (E.D. Tenn. 1965) ( denying Hoffa a new trial), she was prosecuted

and convicted und

er the f ederal o bstru ction of justice statute, 18 U.S.C. § 1503. Essex , 407 F.2d at 215-16. We noted that §1503 had gr

own out of

the same 1831 act as the federal contempt statute, 18 U.S.C. § 401, and th erefore concluded

that the dispositive issue was whether Essex’s “act of filing a false affidavit . . . constitute[d] a contemptuous act within the meaning of . . . § 1503.” Essex
, 407 F.2d at 217. We held that it did not. Ibid. 8 12 United States v. Arredondo No. 02-1394

“corr uptly . . . influenc[ing ], obs truct[ing ], or im ped [in g], or endeavor[ing] to in flu ence, obstruct, or i mpede, the due admi nis tra ti on of justice.” 18 U .S.C. § 150 3(a)

. The diff erence i n langu age sugge sts that § 1503 may have a broader reach tha n § 401. Moreover, assi gning a widerscop e to § 150 3 liab ility rais es no proce duralor se parat ion of powers concer

ns, becaus e a vi olat ion of § 1503 c annotbe pu ni she d us in g t he s ummar y co nt empt

mech ani sms of Fed . R. Cr im. P. 4 2. See Griffin , 5 89 F .2d a t 205 -06. In stead , a pros ecut ion must be i nit iate d by indi ctment and the cas e must be t ried before a new judge. Accordingl y, we ha ve “sev erely limi ted” Essex ’s holding in subseque nt § 150 3 case s. U nited State s v. Co llis , 128 F. 3d 313, 318 (6 th

Cir. 199 7) (upholding § 1503 co nviction of pri soner who submi tt ed a fabri cated let ter att est ing to hi s good ch aract er i n an at tempt to influen ce his se ntencin g hear ing). Neve rtheless, these crit ici sms o f Ess ex do not e xten d to t he § 401

con text. Essex remains inst ructive aut hor ity on t

he sc ope of c ontempt liability in this circ uit. Michael and Es sex togethe r make c lear tha

t “false testimony alone,” whether written or oral, “w ill not amou

nt to contempt of court.” Ibid. The government argues that several grounds distinguish Arredondo’s conduct from the conduct at issue in Michael an d Esse x . Upon consideration, however,

we must reject each of these a rgumen ts for upholding Arredondo’s contempt conviction.

Firs t, the government argues tha t becaus e Arred

ondo’s fa lse allegations con cerned the perf ormance of his attorney

in his criminal trial, they obstructed the ope ration of the jus tic e system in a way that routine pe rjuries do not. While the gover nment cites no authority for this proposition, t h e Supreme Court upheld a contempt conviction for fals e swearing under a somewhat similar theory in Clark v. United States
, 289 U.S. 1 (1933). Clark wa s a venire member who lied her way on to the jury

with representations that she was unbiased, despite the fact that she was an ally of the defendant who would have voted f or an ac quittal re gardle ss of th e evidence. Id. at 8-11. The Supre me Court he ld

that she had “trifled with the c ourt of wh

ich she was a par

t, and mad

e it s processes a mockery ,” which wa s “conte mpt, whate

ver elseNo. 02-1394 United States v. Arredondo 13

it ma y be b esides.” Id. at 12. However, Clark and its progeny , e.g. , In re Brogdon , 625 F. Supp. 422 (W.D. Ark. 1985) (upholding contempt conviction of juror who lied about his bias and prior knowledge of even ts at trial), are distingu ishable from Arrendondo’s case. Jurors and

ve niremen

are officers of the court. Their c ond uct i s governed by a separ

ate section of

the federal contempt

statute, 18 U.S.C. § 401(2) ( prohi biting “misbehavior” by a court officer), as wel l as th e ge nerally applicable c ontempt provision of 18 U.S.C. § 401(1). Here, Arredondo was only

a party, not an off

icer of the court. Clar k i s also distingu ishable from Arr

edondo’ s case in

that Cla

rk ’s falsehoods interfered with the machinery of the ve ry

tria l in whichshe participated. As the Supre me Court later explained, Clark’s perjury “ prevent[ed] the . . . formation of

a proper j udicial t ribunal.” Michael , 32 6 U. S. at 2 28. In contrast, while Arredondo’s falsehoods could be s a id to be about the “adm

inist rati on of justice,” 18 U.S.C. § 401, inasmucha s the s ubject ma tter of hi s testimony

and his Section2255 petition was the supposed ineffectiveassistance rendered by his counsel in an ea

rlier court proceeding , his falsehoods did not interfere with the administration of justice inhis Section 2255 pro ceedi ng, aside from the necessary obstructive ef

fe ct ex er ci se d b y all false testimony. As Michael makes pla

in, that is n

ot enoug h for con tempt.

Seco nd, the gov ernment seeks to distinguish Michael on the ground that Arredondo was not, like Michael, a pa ssive witnesscalled to the stand. Inste ad, Arr edondo g ave his f

alse testimony in a postc onviction

procee ding tha

t he himsel f

had initiated. The government therefore a rgues that Arredondo’s act of filing a Section

2255 petition substantially premised on falseaccusat io ns suggests a degre e of willful interference with the judic ial proc ess greater than the typica l episode of perju ry. We acknow

ledge t he inher ent plaus ibility

of this argume nt. However, it cannot be squared with ou r decision in Essex . After all, Essex submitted her false affida vit in support of Hoffa’s motion to secure a retrial. If the court had believed her, it might have or dered a lengthy, costly new 14 United States v. Arredondo No. 02-1394

9 As Judge Han d p ut it: “I t coul d not be enough f or a wit ness t o say he did not r emember where he h ad slept the ni ght bef

ore, i f he was sane and sobe r, or that h e cou ld not t ell whether he had been marri ed more than

a week.” Appel , 211 F. at 495-96; In re We iss , 703 F.2d 6 53, 663 (2d Cir. 1983) (charact erizi ng such r esponses a s a “mi ddle c ateg ory of test imonial obd uracy” betwe en per jury and re fus al t o res pond). An ans wer n eed not b e evas ive to be punis hable . “ On Venus” w ould a lso be a cont emptuou s response t o the question of a party’ s whereabout s the night before. court procee ding tha

t likewise would have been premised on f alsehood. Yet we he ld that Ess ex’s condu ct was not “ a contemptuous act,” and we take the same view of Arredondo’s conduct here. Essex , 407 F.2d at 218.

Fi na ll y, the gov ernment

sugge sts that Ar

redondo ’s false statemen ts are con temptuous

because they were not merely false, but “blat

ant f abri cations. ” The dist

rict cou rt also appears to have taken this view. Courts may inde ed punish as contempt testimony that is “a mere sha m.” Uni te d States v. Appel
, 211 F. 495, 497 (S.D.N.Y. 1913) (L. H and, J.) ; see Hudging s , 249 U. S. at 383 (a pprov ing Appel); Collins v. United States , 269 F.2d 74 5 (9th Cir. 1959). A witness’s refusal to respond to questions is a classic form of contempt

. United States v. Seavers , 472 F.2d 607, 611 ( 6th

Cir. 1973). By extension, an answe

r patent ly false on

its face is equivalent

to a r ef

usal to testify

and may

be similar

ly punished. 9 Howeve

r, “thispower mu st not be us ed to punish pe rjury .” Appel , 211 F. at 496. To prevent the exception f romswallowing the rule, courts employ a technica l distinction: testimony is not a contemptuous sham unless the court ca n t ak e “ ju di ci al no ti ce ” o f i ts fa ls it y, see, e.g. , Harbor Tank Storage Co. v. DeAngelis , 204 A.2d 13, 17 (N.J. Super. App. Div. 1964) , or, put di ffere ntly , unless the falsity

is apparent without referenceto extrinsic evidence in the record. The test is w

heth er “on its mere face, and without inquiry collaterally,”

the testimony

is “not a b ona fide

effort t o
answer the questions at all.” Michael , 326 U.S. at 228-29 (quoting Appel , 211 F. at 496).No. 02-1394 United States v. Arredondo 15

By this standard, Ar

redo ndo’s testimony, though wea k, was nota contemptuous sham. His testimony about Plachta’s failure to convey

the first plea offer certainly was not false on its face. The district court faced a significant evidentiary conflict about this matter, whi ch it resolve d against Arredondo. The questi on is closer w ith respe ct to Arredondo’s testimony about Plachta’s failure to pass on the (nonexiste

nt) second plea offer. H is original affidavit that stated that Arredondo had seen Plachta and Hluchaniuk ta lking on the day

of trial a nd that Pla

chta had shaken h is head “no.” After the court rejected Arredondo’s petition, he filed a ne w af fidavit with his motion for re consider ation, to whichhe added an assertion that he had overheard r elev ant snippetsof the supposed plea conv ers ation, and that Hluchaniuk

had shaken his head “no. ” It is hard to see why thesesignific ant facts were n ot include d in the or

ig ina l affida vit. The distr

ict cour t corre ctly noted that Arredondo’s oral testimony in the Section 2255 hearing was evasive, and his own statements on this issue cast grave doubt on thetruth of his as sertion s. Nevertheless, the second affidavit (and Arredondo’s corresponding oral testimony at the Se ction 2255 hea ring) was not pat

ently falseon its face. There were inconsistencies betwee

n the two affidavit s, which properly influenced

the distri ct court ’s decis ion to reject Arredondo’s claims, but not the

sort of bla

tant cont r adicti on that might permit a contempt finding. Cf. Collins , 269 F .2dat 751 (affirming

contempt convicti on where

witness to ld

grand jury three different, contradictory stories a bout his ro le in

a murder

an d burglary ). Moreover, Arredondo’s testimony as to th e cruci al issue in the case – the handling of the plea offe r o r offers – does n ot appear clearly false until placed in the context of the other testimony . If A ssis tan t United States Attorney Hluchaniuk had testifi ed, for example, that he did make a second

plea off er to Plac hta on the day of trial, while Plachta denied it, then the factfinder might have hesitated to hold that Arredondo fabricated his testimony about Plachta’s handlingof thatoffer. Since the falsity of Arredondo’s testimony cannot be plainly e stablished withoutinvoking the 16 United States v. Arredondo No. 02-1394

“testimony

of other witnesses,” Michael , 329 U.S. a t 229, his conduct does not fall under the Appel exception.

Arredondo’s falsetestimony was har mful. It compelled the expenditure of sca rce judicial resources in the district court and in this court to analyze his alleg ations, and it threatened unwarranted

professional discipline of an a ttorney. I

t was also self-serving: Ar

redond o sought

to wang le relie f from a sentence duly

impos ed on

him for ser

ious d rug crimes. We

are sympathetic to the

district court’s view that

Arredondo’s falsetestimony had a suff ici ently unusual obstructive ef fect to justify a fin ding of contempt. Indee d, the district court’s decisionappears have been guide d in part by dicta in our own prior opinion in this case. See Arre don do , 177 F.3d at 790 (statingthat “ cour

ts should not . . . r

efus [e] t o punis h demonstr ably false c laims o f ine ffective assistance of counsel.”). However, after full briefing and arg ument on the issue, we conclude that contempt liability c annot be imposed inthis case, consistently with a fa ir re adin g of Michael

and E ssex

. It re

mains ope

n for “c ourts . . . t

o punish” s

uch fals e claims by means of a

perjury prose cution.

IV

For the fo regoin g r easo ns, Arredondo’s conviction for contempt is REVERSED and the de nial of his petition for postconviction relief from his sentence is AFFI RMED.