1

7RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0403P (6th Cir.)

File Name: 03a0403p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

RICARDO ARREDONDO,

Defendant-Appellant.

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No. 02-1394

Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

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 Judges.

_________________

COUNSEL

ARGUED: Kevin M. Schad, SCHAD & COOK, Indian

Springs, Ohio, for Appellant. James A. Brunson,

ASSISTANT UNITED STATES ATTORNEY, Bay City,

Michigan, for Appellee. ON BRIEF: Kevin M. Schad,

SCHAD & COOK, Indian Springs, Ohio, for Appellant.

2 United States v. Arredondo No. 02-1394

James A. Brunson, ASSISTANT UNITED STATES

ATTORNEY, Bay City, Michigan, for Appellee.

_________________

OPINION

_________________

BOGGS, Chief Judge. The district court held Ricardo

Arredondo in criminal contempt of court after finding that he

gave fabricated evidence of ineffective assistance of counsel

to support his petition for postconviction relief from a federal

sentence for drug trafficking. Mr. Arredondo appeals from

this contempt conviction and from the district court’s

accompanying denial of relief from his drug sentence. For the

reasons explained below, we reverse the conviction for

contempt but affirm the denial of postconviction relief.

I

Arredondo was convicted in 1990 of three counts of

distribution of heroin and conspiracy to distribute heroin, and

sentenced to 20 years in prison. In 1996, with the assistance

of another inmate, he filed a pro se petition under 28 U.S.C.

§ 2255 seeking relief from the sentence. As relevant here, the

petition asserted that his appointed attorney, Thomas Plachta,

provided constitutionally ineffective representation at

sentencing by failing to communicate two alleged

government plea offers to Arredondo for approval.

Arredondo claims he would have accepted either of the offers

if given the chance, and would 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 deadline of

August 27, 1990, after which no plea offers could be

extended. It is undisputed that Assistant United States

Attorney Michael Hluchaniuk made one plea offer to Plachta

before this deadline, which would have involved a
No. 02-1394 United States v. Arredondo 3

recommended sentence of five to ten years, and that Plachta

rejected this offer. The disputed issue regarding this offer is

whether Plachta first communicated it to Arredondo for

approval. 

Arredendo’s petition further alleged that Hluchaniuk made

a second offer of a ten-year sentence to Plachta on the day of

trial, and that Plachta also rejected this offer without

conveying it to his client. Arredondo supported this

allegation with two affidavits. One affiant, Maria Teneyuque,

stated that her sister Mary Jane Dietrich (a material witness in

Arredondo’s trial) had overheard Plachta and Hluchaniuk

discussing a plea before the trial. Arredondo also filed his

own affidavit testifying that he had seen his lawyer talking

with Hluchaniuk on the day of trial, and had seen Plachta

shake his head “no.” 

Both Plachta and Hluchianiuk denied that any second offer

was made. Plachta did not squarely deny Arredondo’s claim

that Plachta had failed to communicate the first offer.

Instead, Plachta filed an affidavit stating that he could not

specifically remember the events of that day, but that “my

practice has always been to communicate any plea offer made

by the prosecution to my client regardless of my personal

view as to the merits of the offer.” 

The district court denied Arredondo’sSection 2255 petition

without an evidentiary hearing. Arredondo then retained a

different inmate paralegal to assist him and filed a pro se

motion for reconsideration of the denial, pursuant to Fed. R.

Civ. P. 59(e). This motion was accompanied by a new

affidavit from Arredondo that included new allegations: that

Arredondo had himself heard some snippets of the alleged

plea conversation between Plachta and Hluchaniuk on the day

of trial, including a reference to a ten-year sentence. In this

affidavit, Arredondo stated that he had seen the prosecutor

shake his head “no.” The new affidavit also alleged that

Plachta “advised” Arredondo “in words” on the day of trial

that he had rejected a government plea offer, in tension with

4 United States v. Arredondo No. 02-1394

1W e held that the original supporting affidavit accompanying the

petition (in which Ms. Teneyuque reported hearing the lawyers discuss a

second plea offer on the day of trial) was inadmissible as hearsay and

implausible on its face, since the district judge in question had a firm

policy of refusing to accept any negotiated pleas after the pretrial cut-off

date. We also rejected Arredondo’s second affidavit as a possible basis

for a hearing, because the conversation supposedly overheard by

Arredondo was not newly discovered evidence, and Arredondo had

presented no valid reason for failing to include it with his original petition

for relief. 

2We also held that Arredondo should receive a hearing on his other

ineffective assistance claim regarding counsel’s failure to challenge the

drug quantity in the pre-sentence report (PSR). Arredondo, 178 F.3d at

789.

the statement in the earlier affidavit that Plachta had “never

advised” him of any offer. However, in the same paragraph

of the second affidavit, Arredondo affirmed that Plachta never

“made [Arredondo] aware” of a plea offer prior to trial. It is

thus fairly clear that by “made aware” Arredondo meant

communicating the offer before rejecting it. The district court

denied the motion for reconsideration and Arredondo

appealed to this court.

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 the district court that

Arredondo was not entitled to a hearing on his allegations

concerning the supposed second plea offer.1 Id. at 782-83 &

n.3. However, we held that he was entitled to a hearing on

the circumstances surrounding the first plea offer. Id. at 789.2

In closing, we noted that the inconsistent accounts in the

affidavits of Plachta, Hluchaniuk, and Arredondo suggested

that someone was not telling the truth:

Arredondo has lodged serious claims that attack his

attorney’s professional competence. If true, his petition

deserves our attention. ... If false, Arredondo has
No. 02-1394 United States v. Arredondo 5

3

The court also rejected a separate claim of ineffective assistance

premised on counsel’s failure to challenge the PSR. Arredondo has

abandoned this issue on appeal.

4

At the time of the district court proceedings, the notice-and-hearing

procedure used in Arredondo’s contempt proceeding was found at Fed. R.

Crim. P. 42(b). However, the rule underwent a technical revision on

December 1, 2002. The procedure is now found at Fed. R. Crim. P. 42(a).

lied in a self-interested endeavor that could have caused

unwarranted discipline of his attorney. The courts should

not encourage such actions by refusing to punish

demonstrably false claims of ineffective assistance of

counsel.

Id. at 790. 

The district court held an evidentiary hearing on

Arredondo’s petition on January 13, 2000. Arredondo

repeated in court the allegations of his second affidavit:

Plachta had failed to secure his client’s permission to reject

two plea offers, and Arredondo had personally heard

fragments of the discussion concerning the second offer being

discussed. Assistant United States Attorney Hluchaniuk

again testified that he made one plea offer to Plachta prior to

the court deadline, but no second offer. Plachta testified that

he did not specifically recall the plea discussions in

Arredondo’s case, but that it was always his practice to pass

on such offers to his clients for approval.

The district court denied Arredondo’s Section 2255

petition. It rejected his testimony about the existence of the

second plea offer and about Plachta’s handling of the first

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

Arredondo had committed criminal contempt of court by

knowingly offering 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 found Arredondo guilty

6 United States v. Arredondo No. 02-1394

of criminal contempt and imposed a sentence of six months

in prison, consecutive to his prior sentence, and a $3,000 fine.

The court found that Arredondo had engaged in a series of

fabrications. It noted that Arredondo’s story had changed

materially from his first affidavit to his second one: after the

district court rejected the Teneyuque affidavit as hearsay,

Arredondo introduced an assertion that he had heard part of

the day-of-trial plea discussion, without explaining why this

seemingly important fact was not included in his first

affidavit. The court concluded that Arredondo’s second

affidavit had “learned” from the testimony that had come to

light, suggesting a deliberate fabrication. The court deemed

the affidavit particularly incredible in light of Hluchaniuk’s

denial of making any second plea offer. It also discounted

Arredondo’s claim that Plachta failed to pass on the first plea

offer. Drawing on its own knowledge of Plachta’s

“fastidious” work habits, the court found that he had duly

passed on the first plea offer to Arredondo, and that

Arredondo had simply fabricated his testimony to the

contrary.

The district court went on to hold that the fabrications it

identified had significantly obstructed the administration of

justice, thereby amounting to a contempt of court. It

described Arredondo’s testimony as involving “egregious,”

“blatant,” and “transparently false” perjuries. It also noted

that the perjured allegations of misconduct were integral to

Arredondo’s Section 2255 petition – the postconviction

litigation, which had consumed a significant amount of

judicial and public resources, had been founded chiefly on

falsehoods. Finally, the court reasoned that Arredondo’s false

testimony about Plachta had threatened to impose

unwarranted professional discipline on an attorney, which

also revealed a tendency to obstruct the administration of the

justice system. 

Arredondo timely appealed from the contempt conviction

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

5

See Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986) (testimony

of five prior incidents in which the defendant responded violently to the

presence of uniformed police officers, with proffer of three more

incidents, sufficed to establish “habit” under Fed. R. Evid. 406); United

States v. Floulis, 457 F. Supp. 1350, 1355 n.2 (W.D. Pa. 1978)

(permitting the INS to prove that defendant had been informed of his right

to contact his consulate using evidence of INS’s routine office

procedures).

II

We find no basis for disturbing the district court’s factual

findings that Arredondo willfully fabricated the allegations

about Plachta’s misconduct in his affidavit and oral

testimony. The record plainly supports the finding that

Arredondo’s statements about the alleged second plea offer

were willfully false; indeed, Arredondo has not meaningfully

challenged this conclusion. However, Arredondo does

contest the finding that he lied about Plachta’s failing to pass

on the first plea offer. While the evidence for this conclusion

was controverted, it was sufficient to support the district

court’s finding. Plachta testified that he always passed on

plea offers to clients. He had already represented five to

fifteen criminal defendants in federal court at the time of

Arredondo’s trial, and had undertaken more representations

since then. In light of Plachta’s experience, 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

cannot say the district court’s decision to credit Plachta’s

testimony about the first plea offer and its finding that

Arredondo willfully fabricated his contrary testimony were

clearly erroneous, especially in light of Arredondo’s

established lack of credibility in other matters such as the

second plea offer. 

These findings eliminate the factual basis for Arrendondo’s

claim that his counsel provided ineffective assistance by

failing to pass on plea offers to him. Since that is the only

ground on which Arredondo has appealed the denial of his

8 United States v. Arredondo No. 02-1394

6

An element of every contempt proceeding under 18 U.S.C. § 401(1)

is proof that the alleged contemptuous conduct was “in . . . or . . . near”

the presence of the court. Ibid.; see Vaughn, 752 F.2d at 1167. This

element is to be understood “geographical[ly],” as requiring physical

proximity to the court’s presence. Nye v. United States, 313 U.S. 33, 48-

Section 2255 petition, we affirm the denial of his petition

without further discussion. 

III

The remaining question is whether Arredondo’s

falsifications constituted contempt of court under 18 U.S.C.

§ 401. 

The power to punish contempts is “inherent in all courts,”

Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S.

787, 795 (1987) (quotation marks omitted), allowing them to

protect themselves against assaults on their authority.

However, because this power may be exercised without many

of the normal procedural protections of a criminal trial, it is

subject to constitutional and statutory limitations. A federal

court has the power, codified in 18 U.S.C. §§ 401 and 401(1),

to punish “such contempt of its authority, and none other, as

[the following:] [m]isbehavior of any person in its presence

or so near thereto as to obstruct the administration of justice.”

This statutory language originated in the federal Act of 1831,

and represented a “drastic curtailment of the contempt power”

previously recognized. Bloom v. Illinois, 391 U.S. 194, 203

(1968). 

The narrow category of contempts committed “in the actual

presence of the court” may be punished immediately by the

judge who saw or heard the offending conduct. Fed. R. Crim.

P. 42(b). This summary power is reserved for “exceptional

circumstances . . . such as acts threatening the judge or

disrupting a hearing or obstructing court 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’s
No. 02-1394 United States v. Arredondo 9

49 (1941) (reversing contempt conviction of petitioners who used liquor

to coerce an infirm, elderly man into filing letters in federal district court

seeking to dismiss the man’s civil action against petitioners’ friend;

coercive actions took place over 100 miles from the district court). It may

be questioned whether Arredondo’s filing of false affidavits was

sufficiently “near” the district court to be punished as contempt. Our

precedents suggest that the answer depends on whether the court was then

in session. See Schmidt v. United States, 124 F.2d 177, 177 (6th Cir.

1941) (holding that defendant’s filing of false papers with clerk could not

be punished as contempt, “since it does not appear that the court was in

session at the time.”). 

Neither party has discussed this issue. We need not resolve it,

because in the evidentiary hearing that followed our first remand,

Arredondo orally repeated in the presence of the court the allegations

contained in his written affidavits. We will assume without deciding that

Arredondo’s affidavits were also given “in or near” the court’s presence,

because as discussed below, they nevertheless fall outside the scope of

contempt liability, as they did not obstruct justice within the meaning of

§ 401.

presence, must be adjudicated according to the more

developed procedure of Fed. R. Crim. P. 42(a), the procedure

followed in this case, which mandates notice and an adversary

hearing. Even so, the Rule 42(a) procedure is “pretty

summary,” United States v. Oberhellman, 946 F.2d 50, 52

(7th Cir. 1991), since the offended judge may initiate the

proceeding without indictment, may impose sentence on the

convicted contemnor, and, in a nonjury case like this one,

may try the case himself. For this reason, contempt liability

under Rule 42(a) should be “circumscribed as narrowly as is

consistent with the maintenance of order and decorum

essential to the effective operation of the judicial system.” Id.

at 53.

A witness’smisconductmust “obstruc[t] the administration

of justice” in order to be punishable as contempt. 18 U.S.C.

§ 401(1); Vaughn, 752 F.2d at 1167. Arredondo’s main

argument for reversal is that even if he gave knowingly false

oral and written testimony in support of his Section 2255

petition, this was legally insufficient under the circumstances

here to constitute an obstruction of justice under § 401. We

10 United States v. Arredondo No. 02-1394

7

Indeed, the facts given by the Supreme Court and in the lower

court’s opinion, 146 F.2d 627 (3d Cir. 1944), suggest that Michael’s

falsifications may have been self-serving. The grand jury summoned him

in the course of “a general investigation of frauds against the United

States.” Michael, 326 U.S. at 226. If the bankrupt’s assets were being

dissipated for improper purposes, then Michael might have faced

indictment.

review this mixed legal and factual question de novo. See

United States v. Baggett, 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 habeas corpus to a federal witness who had been

imprisoned for contempt after giving implausible testimony

that he could not verify the handwriting of his own business

partners. The Court held that “in order to punish perjury in

the presence of the court as a contempt there must be added

to the essential elements of perjury . . . the further element of

obstruction to the court in the performance of its duty.” Id. at

383 (emphasis added). Cautioning against “mistakenly

attribut[ing] a necessarily inherent obstructive effect to false

swearing,” it emphasized the “potentiality of oppression and

wrong” that would arise if courts could summarily punish

witnesses for giving testimony with which the court

disagreed. Id. at 384. 

The Court reaffirmed Hudgings in In re Michael, 326 U.S.

224 (1945), upon which Arredondo principally relies. A

grand jury subpoenaed Michael, a bankruptcy trustee, to

testify about numerous checks that had been written from the

bankrupt’s assets. He gave direct, unequivocal responses to

questions before the grand jury, but the district court found

that his answers were lies.

7

 The lower courts held Michael

guilty of contempt, reasoning that he had “block[ed] the

inquiry” of the grand jury by giving false testimony about the

purposes of the checks. Id. at 229. The Supreme Court
No. 02-1394 United States v. Arredondo 11

8

As the Fifth Circuit has observed, it may be questionable whether

Essex correctly interpreted the scope of 18 U.S.C. § 1503. See United

States v. Griffin, 589 F.2d 200, 204-06 (5th Cir. 1979). Essex used the

Supreme Court’s § 401 contempt cases to interpret § 1503, see 407 F.2d

at 217-18, yet the operative provisions of these two statutes are not the

same. Section 401(1) prohibits misbehavior that “obstruct[s] the

administration of justice.” 18 U.S.C. § 401(1); see also Vaughn, 752 F.2d

at 1168. Section 1503 prohibits, among other kinds of conduct,

unanimously reversed. It emphasized that the natural

tendency of all false testimony is to mislead the finder of fact,

but this does not, as such, render it contemptuous:

All perjured relevant testimony is at war with justice

since it may produce a judgment not resting on truth.

Therefore it cannot be denied that it tends to defeat the

sole ultimate objective of a trial. It need not necessarily,

however, obstruct or halt the judicial process. For the

function of trial is to sift the truth from a mass of

contradictory evidence, and to do so the factfinding

tribunal must hear both truthful and false witnesses. 

Id. at 227-28. 

We applied Michaelin United States v. Essex, 407 F.2d 214

(6th Cir. 1969), to reverse the obstruction of justice

conviction of a witness who had filed a perjured affidavit.

After the trial court disbelieved Essex’s written testimony that

she had sexual relations with several jurors in the trial of

Jimmy Hoffa, see United States v. Hoffa, 247 F. Supp. 692

(E.D. Tenn. 1965) (denying Hoffa a new trial), she was

prosecuted and convicted under the federal obstruction of

justice statute, 18 U.S.C. § 1503. Essex, 407 F.2d at 215-16.

We noted that §1503 had grown out of the same 1831 act as

the federal contempt statute, 18 U.S.C. § 401, and therefore

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

“corruptly . . . influenc[ing], obstruct[ing], or imped[ing], or

endeavor[ing] to influence, obstruct, or impede, the due administration of

justice.” 18 U.S.C. § 1503(a). 

The difference in language suggests that § 1503 may have a broader

reach than § 401. Moreover, assigning a wider scope to § 1503 liability

raises no procedural or separation of powers concerns, because a violation

of § 1503 cannot be punished using the summary contempt mechanisms

of Fed. R. Crim. P. 42. See Griffin, 589 F.2d at 205-06. Instead, a

prosecution must be initiated by indictment and the case must be tried

before a new judge. Accordingly, we have “severely limited” Essex’s

holding in subsequent § 1503 cases. United States v. Collis, 128 F.3d

313, 318 (6th Cir. 1997) (upholding § 1503 conviction of prisoner who

submitted a fabricated letter attesting to his good character in an attempt

to influence his sentencing hearing). 

Nevertheless, these criticisms of Essex do not extend to the § 401

context. Essex remains instructive authority on the scope of contempt

liability in this circuit.

Michael and Essex together make clear that “false

testimony alone,” whether written or oral, “will not amount to

contempt of court.” Ibid. The government argues that several

grounds distinguish Arredondo’s conduct from the conduct at

issue in Michael and Essex. Upon consideration, however,

we must reject each of these arguments for upholding

Arredondo’s contempt conviction.

First,the government argues that because Arredondo’s false

allegations concerned the performance of his attorney in his

criminal trial, they obstructed the operation of the justice

system in a way that routine perjuries do not. While the

government cites no authority for this proposition, the

Supreme Court upheld a contempt conviction for false

swearing under a somewhat similar theory in Clark v. United

States, 289 U.S. 1 (1933). Clark was 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 for an acquittal regardless of the

evidence. Id. at 8-11. The Supreme Court held that she had

“trifled with the court of which she was a part, and made its

processes a mockery,” which was “contempt, whatever else
No. 02-1394 United States v. Arredondo 13

it may be besides.” 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 jurorwho lied about

his bias and prior knowledge of events at trial), are

distinguishable from Arrendondo’s case. Jurors and

veniremen are officers of the court. Their conduct is

governed by a separate section of the federal contempt statute,

18 U.S.C. § 401(2) (prohibiting “misbehavior” by a court

officer), as well as the generally applicable contempt

provision of 18 U.S.C. § 401(1). Here, Arredondo was only

a party, not an officer of the court. Clark is also

distinguishable from Arredondo’s case in that Clark’s

falsehoods interfered with the machinery of the very trial in

which she participated. As the Supreme Court later

explained, Clark’s perjury “prevent[ed] the . . . formation of

a proper judicial tribunal.” Michael, 326 U.S. at 228. In

contrast, while Arredondo’s falsehoods could be said to be

about the “administration of justice,” 18 U.S.C. § 401,

inasmuch as the subject matter of his testimony and his

Section 2255 petition was the supposed ineffective assistance

rendered by his counsel in an earlier court proceeding, his

falsehoods did not interfere with the administration of justice

in his Section 2255 proceeding, aside from the necessary

obstructive effect exercised by all false testimony. As

Michael makes plain, that is not enough for contempt.

Second, the government seeks to distinguish Michaelon the

ground that Arredondo was not, like Michael, a passive

witness called to the stand. Instead, Arredondo gave his false

testimony in a postconviction proceeding that he himself had

initiated. The government therefore argues that Arredondo’s

act of filing a Section 2255 petition substantially premised on

false accusations suggests a degree of willful interference

with the judicial process greater than the typical episode of

perjury. We acknowledge the inherent plausibility of this

argument. However, it cannot be squared with our decision

in Essex. After all, Essex submitted her false affidavit in

support of Hoffa’s motion to secure a retrial. If the court had

believed her, it might have ordered a lengthy, costly new

14 United States v. Arredondo No. 02-1394

9

As Judge Hand put it: “It could not be enough for a witness to say

he did not remember where he had slept the night before, if he was sane

and sober, or that he could not tell whether he had been married more than

a week.” Appel, 211 F. at 495-96; In re Weiss, 703 F.2d 653, 663 (2d Cir.

1983) (characterizing such responses as a “middle category of testimonial

obduracy” between perjury and refusal to respond). An answer need not

be evasive to be punishable. “On Venus” would also be a contemptuous

response to the question of a party’s whereabouts the night before.

court proceeding that likewise would have been premised on

falsehood. Yet we held that Essex’s conduct was not “a

contemptuous act,” and we take the same view of

Arredondo’s conduct here. Essex, 407 F.2d at 218.

Finally, the government suggests that Arredondo’s false

statements are contemptuous because they were not merely

false, but “blatant fabrications.” The district court also

appears to have taken this view. Courts may indeed punish as

contempt testimony that is “a mere sham.” United States v.

Appel, 211 F. 495, 497 (S.D.N.Y. 1913) (L. Hand, J.); see

Hudgings, 249 U.S. at 383 (approving Appel); Collins v.

United States, 269 F.2d 745 (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 answer patently false on its face is

equivalent to a refusal to testify and may be similarly

punished.9 However, “this power must not be used to punish

perjury.” Appel, 211 F. at 496. To prevent the exception

from swallowing the rule, courts employ a technical

distinction: testimony is not a contemptuous sham unless the

court can take “judicial notice” of its falsity,see, e.g., Harbor

Tank Storage Co. v. De Angelis, 204 A.2d 13, 17 (N.J. Super.

App. Div. 1964), or, put differently, unless the falsity is

apparent without reference to extrinsic evidence in the record.

The test is whether “on its mere face, and without inquiry

collaterally,” the testimony is “not a bona fide effort to

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, Arredondo’s testimony, though weak, was

not a 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, which it resolved against

Arredondo. The question is closer with respect to

Arredondo’s testimony about Plachta’s failure to pass on the

(nonexistent) second plea offer. His original affidavit that

stated that Arredondo had seen Plachta and Hluchaniuk

talking on the day of trial and that Plachta had shaken his

head “no.” After the court rejected Arredondo’s petition, he

filed a new affidavit with his motion for reconsideration, to

which he added an assertion that he had overheard relevant

snippets of the supposed plea conversation, and that

Hluchaniuk had shaken his head “no.” It is hard to see why

these significant facts were not included in the original

affidavit. The district court correctly noted that Arredondo’s

oral testimony in the Section 2255 hearing was evasive, and

his own statements on this issue cast grave doubt on the truth

of his assertions. Nevertheless, the second affidavit (and

Arredondo’s corresponding oral testimony at the Section

2255 hearing) was not patently false on its face. There were

inconsistencies between the two affidavits, which properly

influenced the district court’s decision to reject Arredondo’s

claims, but not the sort of blatant contradiction that might

permit a contempt finding. Cf. Collins, 269 F.2d at 751

(affirming contempt conviction where witness told grand jury

three different, contradictory stories about his role in a murder

and burglary). Moreover, Arredondo’s testimony as to the

crucial issue in the case – the handling of the plea offer or

offers – does not appear clearly false until placed in the

context of the other testimony. If Assistant United States

Attorney Hluchaniuk had testified, for example, that he did

make a second plea offer to Plachta 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

handling of that offer. Since the falsity of Arredondo’s

testimony cannot be plainly established without invoking the

16 United States v. Arredondo No. 02-1394

“testimony of other witnesses,” Michael, 329 U.S. at 229, his

conduct does not fall under the Appel exception.

Arredondo’s false testimony was harmful. It compelled the

expenditure of scarce judicial resources in the district court

and in this court to analyze his allegations, and it threatened

unwarranted professional discipline of an attorney. It was

also self-serving: Arredondo sought to wangle relief from a

sentence duly imposed on him for serious drug crimes. We

are sympathetic to the district court’s view that Arredondo’s

false testimony had a sufficiently unusual obstructive effect

to justify a finding of contempt. Indeed, the district court’s

decision appears have been guided in part by dicta in our own

prior opinion in this case. See Arredondo, 177 F.3d at 790

(stating that “courts should not . . . refus[e] to punish

demonstrably false claims of ineffective assistance of

counsel.”). However, after full briefing and argument on the

issue, we conclude that contempt liability cannot be imposed

in this case, consistently with a fair reading of Michael and

Essex. It remains open for “courts . . . to punish” such false

claims by means of a perjury prosecution.

IV

For the foregoing reasons, Arredondo’s conviction for

contempt is REVERSED and the denial of his petition for

postconviction relief from his sentence is AFFIRMED.