“Targeting Defense Counsel,” the response stated, in part, the following:

When undersigned counsel exccuted the standard form for filing
an appearance in U.S. District Court, he completed the form as
he has on numerous previous occasions, without any special
attention to the significance of the two (2) boxes checked.

Since 1995, undersigned counsel has filed his appearance in
several cases both as plaintiff's and defendant’s counsel, and in
numerous bankruptcies before the U.S. District Court for the
Norther District of Illinois.

In addition to being licensed to practice law in the State of
Illinois, undersigned counsel was duly admitted and qualified
as an attorney of the United States District Courts of Illinois
and Michigan, and the United States Tax Court, appearing in
numerous cases in each, without ever having been informed
that he is “not a member of the trial bar or the general bar.”
Counsel also has been admitted pro hac vice in state courts in
indiana, New York, and Michigan. An inquiry and application
for admission to the bar of the United States District Court for
the Northern District of Illinois has been submitted to the
federal courts attorney admissions coordinator, to resolve what
can be no more than a technical error. If required to do so,
counsel would be willing to be admitted pro hac vice, or
associate with a local member of the trial bar. . . .

Personally attacking defense counsel, as has the Government

in questioning (a) counsel’s qualifications, and (b) counsel’s
ability to discern when and if a conflict of interest may arise as
to a joint representation of both Defendants, may rise to a level
of constitutional error. ... The prosecution should not impugn,
either directly or by implication, the integrity of defense counsel
[citations omitted].

According to records of the Clerk’s Office for the United States District Court for the
Northem District of Illinois, there is no record of any attorney admission application having been

submitted on or before June 9, 2003, by or on behalf of Mr. Aulston to the Court’s attomey

admissions coordinator.



Cir. 1978) (“Intentional violation of a rule of court can be found to be a contempt of court.”);
United States v. Morrissey, 996 F. Supp. 530, 540 (E.D. Va. 1998), aff'd, 168 F.3d 134 (4th Cir.
1999),

Here, the government has proven, beyond a reasonable doubt, that the Local Rules
Defendant violated are lawful and reasonably specific. The Local Rules were promulgated under
authority given to the courts to “prescribe rules for the conduct of their business.” 28 U.S.C. §
2071; Fed. R. Crim. P. 57; Fed. R. Civ. P. 83. Moreover, Local Rules 83.53.3(a)(1) and
83.58. 1(a)(1), respectively, specifically proscribe attommeys from making false statements before a
court or making false statements in connection with a bar admission application. As discussed
above, Defendant was aware that these rules applied to him. Defendant acknowledged, under the
penalty of perjury, that he had read Local Rules 83.53 and 83.58; Defendant was also informed as
to the applicability of the rules by the government. Defendant does not argue to the contrary.

Finally, Defendant contends that the charging document, the Notice and Petition for an
Amended Rule to Show Cause, does not “assert that [Defendant] committed contempt by
willfully violating Rules 83.53 and 83,58.” (Def.’s Reply at 3). However, the charging
document clearly states that Defendant, on three separate occasions, made false statements to the
Court by: (1) stating that he was a member of the trial bar; (2) stating, in a filing with this Court,
that he had applied for admission to practice in the Northern District of Illinois; and
(3) misrepresenting his professional disciplinary history in an application for admission pro hac
vice. Although the charging document does not specifically state that Defendant violated Local

Rules 83.53 and 83.58, it clearly provided the factual details necessary so that Defendant could

prepare his defense. See, e.g., United States v. lassnacht, 332 F.3d 440, 444-46 (7th Cir, 2003).



Mr. Aulston signed the pro hac vice application under penalty of perjury. The declaration
which Mr, Aulston certitied by his signature read as follows:

Thave read the Rules of Professional Conduct for the Northern
District of Illinois, effective November 12, 1991 (Local Rules
83.50 through 83.58), and the Standards for Professional
Conduct within the Seventh Federal Judicial Circuit, effective
December 15, 1992, and will faithfully adhere to them. I
declare under penalty of perjury that the foregoing is true and
correct.

On July 10, 2003, the Court accepted the application and ordered that Mr. Aulston may
appear pro hac vice.

Mr. Aulston has been disciplined previously by two courts.

On May 24, 2002, the Supreme Court of Lllinois suspended Mr. Aulston from the practice
of law for ninety days, with the suspension stayed and Mr. Aulston instead placed on probation
for 180 days, according to the records of the Illinois Attorney Registration and Disciplinary
Commission (“ARDC”),

On October 14, 2002, after learning of the Illinois Supreme Court’s disciplinary order, the
Supreme Court of Louisiana entered a reciprocal order of discipline against Mr. Aulston,
according to records of the Supreme Court of Louisiana. The Louisiana Supreme Court imposed
the same sanction against Mr. Aulston as had the Illinois Supreme Court, based upon the same
misconduct.

On September 9, 1981, Mr. Aulston was disbarred by the State of Louisiana for

committing criminal offenses that resulted in his incarceration, according to records of the

Supreme Court of Louisiana. Mr. Aulston was readmitted to practice law in Louisiana in 1995,



The government filed a supplemental memorandum with the Court on July 3, 2003. In its
supplemental memorandum, the government noted for the Court that the government had
notified Mr, Aulston by its May 23 letter of the incorrect appearance form before bringing the
matter to the Court’s attention. According to the records of the Clerk’s Office for the Umited
States District Court for the Northern District of Illinois, as of July 3", the date of the
government’s supplemental memorandum, there was no record of Mr. Aulston’s seeking to be
admitted to this Court.

On July 8, 2003, Mr. Aulston filed an application with the Court, pursuant to Local Rule
83.14, seeking permission to appear pro Aac vice in the case. The application asked the
following question:

Has the applicant ever been censured, suspended, disbarred,
or otherwise disciplined by any court?

4

Mr. Aulston answered the question “No.” Underneath that question, and four other “yes” or “no”
questions concerning the applicant’s professional disciplinary history, the application stated:
NOTE: If the answer to any of the above questions is yes,
please attach a brief description of the incident(s) and the
applicant’s current status before any court, or any agency
thereof, where disciplinary sanctions were imposed, or
where an investigation or investigations of the applicant’s
conduct may have been instituted [emphasis in original].
The five questions on the application concerning professional discipline, including the question

asking whether the applicant was ever censured, suspended, disbarred, or otherwise disciplined

by any court, seek information that is material to the Court in determining whether the applicant

should be permitted to appear pro hac vice.



As stipulated between the government and Defendant, on three separate occasions,
Defendant made false statements to the Court by: (1) stating that he was a member of the trial
bar; (2) stating, in a filing with this Court, that he had applied for admission to practice in the
Northern District of Illinois; and (3) misrepresenting his professional disciplinary history in an
application for admission pro hac vice.

The government has proven, beyond a reasonable doubt, that these false statements were
material, as they affected Defendant's ability to represent persons in criminal matters. These
statements also affected the Court’s decision as to whether to grant Defendant’s application to
appear pro hac vice.

The government has proven, beyond a reasonable doubt, that these false statements were
made willfully by Defendant, as well, After the government informed Defendant that he was not
a member of the trial bar, Defendant filed a brief with the Court falsely stating that he had
applied for attorney admission, Defendant then filed his pro hac vice form and stated, under the
penalty of perjury, that he had read the Local Rules concerning professional conduct. Despite
receiving these warnings, Defendant persisted in his conduct and omitted his disciplinary history
on his pro hac vice application, even though it was severe and, in two of the three instances, had
occurred relatively recently.

Defendant does not contest that he willfully violated the Local Rules but argues that he
must violate a specific court order to be found guilty under § 401(3). However, the text of the
statute provides that a finding of contempt can be made for disobedience of a lawful rule.
Findings of contempt have also been issued for violations of local rules, United States y. Kozel,

908 F.2d 205, 208 (7th Cir. 1990); accord United States y. Marthaler, 571 F.2d 1104, 1105 (9th



Minute Cruer Ferm (08/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge John W. Darrah Sitting Judge {f Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 CR 398 DATE 8/11/2004
CASE USA vs. Robert P. Aulston, IL
TITLE

{{n the following box (a) indicate the party filing the motion, ¢.x., plaintifY, defendant, 3rd party plaintitY, and (b) stute briefly the nature
of the motion being presented,

MOTION:

DOCKET ENTRY:

ql) C) Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(() Answer bricf to motion due. __. Reply to answer brief duc

(4) im Ruling/Tlearing on sel for at

(5) oO Status hearing[held/continued to) [set for/re-set for]on __ set for at

(6) oO Pretrial conferenge[held/continued to] [set for/re-set for] on setfor_ at,

(7) oO Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] hetd/continuad to _ at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CUFRCP4{(m) (OlLocal Rule 41.1 OFRCP41(a\(1) OO FRCP41(a)(2).

(ao) [Other docket entry] Government’s motion for leave to file sur-response in opposition to
respondent's motion for judgment of acquittal is denied. For the reasons stated in the attached
memorandum opinion and order, defendant’s motion for judgment of acquittal is denied. Enter
Memorandum Opinion and Order. Cause is referred to the Probation Office for the preparation of a
presentence investigation report. Sentencing is set for 11/18/04 at 10:00 a.m.

dl) {For further detail sce order attached to the original minute order.]

No notices required, advised in open evurt. Document.

Number.

‘No notices required. number of notices

Notices mailed by judge’s staff

Notified counsel by telephone.

o | Docketing to mail notices. C

Mail AQ 430 form,

ee

Copy to judge/magistrate judge.

euurlroom
ME deputy's
initials

ctintral Clerk's Otfice



CONCLUSION
For the foregoing reasons, the government has proven, beyond a reasonable doubt, that
Defendant is guilty of violating 18 U.S.C. § 401(3). Defendant's Motion for Judgment of

Acquittal is denicd.

wlan Syl ta

J sows . DARRAH
United States District Judge

10


and his admission to practice in the State of Illinois took place after full disclosure of his
disciplinary history in Louisiana.
ANALYSIS

Under 18 U.S.C. § 401(3), “[a] court of the United States shall have the power to punish
by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other,
as . . . Disobedience of resistance to its !awful writ, process, order, rule, decree, or command.”
To make a finding of criminal contempt under § 401(3), there must be “a lawful and reasonably
specific order of the court and a willful violation of that order.” Doe v. Maywood Hous. Auth.,

71 F.3d 1294, 1297 (7th Cir. 1995) (Maywood Hous. Auth.). Willfulness is also an element of
criminal contempt and is defined as a “volitional act done by one who knows or should
reasonably be aware that his conduct is wrongful.” Maywood Hous. Auth., 71 F.3d at 1297
(citation omitted). Willfulness can be inferred from facts and circumstances, Maywood Hous.
Auth,, 71 F.3d at 1297 (citation omitted), All elements of the contempt must be proven beyond a
reasonable doubt. Maywood Hous. Auth, 71 F.3d at 1297 (citation omitted).

Tere, the Government has proven, beyond a reasonable doubt, that Defendant willfully
violated Local Rules 83.53.3(a)(1) and 83.58.1(a)(1). Local Rule 83.53.3(a)(1) states that “[iJn
appearing in a professional capacity before a tribunal, a lawyer shall not... make a false
statement of material fact of law to a tribunal which the lawyer knows or reasonably should know
is falsc.” Local Rule 83.58.1(a) provides that “[a]n applicant for admission to the bar, or a
lawyer in connection with a bar admission application or in connection with a lawyer disciplinary

matter, shall not... make a statement of material fact known by the applicant or the lawycr to be

false.”



On May 23, 2003, counsel for the government sent Mr. Aulston a letter stating the
following:

I noted on the appearance form you filed with the Court that you
stated you are a member of the trial bar and intend to serve as the
trial attorney if this matter goes to trial. It has come to my attention
that you are not a member of the trial bar or the general bar for the
Northern District of Ilinois. I am sending this letter to you as a
courtesy and to give you an opportunity to take any action you deem
necessary to comply with the local rules of the Northern District

of Illinois, including but not limited to Local Rules 83.12 and 83.14.

That letter was sent by facsimile at approximately 10:10 a.m. on May 23, 2003, to Mr. Aulston at
the Wade Law Group; and Mr. Aulston received the letter on or about May 23, 2003.

Mr. Aulston took no action in response to the government’s letter. On June 2, 2003, the
government filed a memorandum with the Court concerning whether Mr. Aulston could represent
both defendants jointly in light of the potential for conflicts of interest. In its memorandum, the
government noted the following:

Because the scope of the Court’s inquiry includes whether the
defendant has an understanding of the reconciliation of the risks
and gains from joint representation, the Court must also consider
the “gains” side of the equation. The inquiry should include an
assessment of the conflicted attorney’s qualifications and
experience, including federal trial experience and experience in
complex financial or tax cases. The government notes on
information and belief that attorney Aulston, who is licensed to
practice law in the State of Illinois, is not a member of this
Court’s trial or general bars, although he represented in his
appearance filed with the Court on May 13, 2003, that he is a
member of the trial bar.

On behalf of the Defendants Payne and Gilkey, Mr. Aulston filed a response to the

government's memorandum on June 9, 2003. Government Exhibit D is a true and correct copy

of the response filed by Mr. Aulston. Mr. Aulston signed the response. Under the heading



which was 6230608.

The appearance form asked whether the attomey was a member of the trial bar of the
Court, stating: “MEMBER OF TRIAL BAR?” The appearance form also asked whether the
attorney was appearing as the trial attorney in the matter, stating: “TRIAL ATTORNEY?” Next
to each of those two questions were boxes for “yes” or “no” answers. Mr. Aulston checked both
boxes indicating “yes.”

According to the records of the Clerk’s Office for the United States District Court for the
Northem District of Mlinois, Mr. Aulston is not a member of either the general bar or the trial bar
of this Court, was not a member of either of those bars at the time he filed the appearance form
on May 13, 2003, and has never been a member of this Court’s general or trial bars.

Among the instructions on the reverse side of the appearance form was Item 6,
“Appearances and Trial Bar Membership.” Tiem 6 stated, in relevant part:

All attorneys filing appearances must indicate whether or not
they are members of the trial bar of this Court and whether or
not they are the attorney who will try the case in the event that it
goes to trial.

Tn criminal actions, an attorney who is not a member of the trial
bar may not file an individual appearance. Pursuant to Local
Rule 83.12, a member of the trial bar must accompany such

attorney and must also file an appearance.

No member of this Court’s trial bar, nor any other attorney, accompanied Mr. Aulston to

court. Nor did any attorney file any appearance in the case along with Mr, Aulston.



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS dy,
EASTERN DIVISION (a?

UNITED STATES OF AMERICA
ve No: 03 CR 398

CLINTON PAYNE, ILI and
COREY L. GILKEY

Judge John W. Darrah

IN THE MATTER OF;

ee eee eee eer

ROBERT P. AULSTON, Ili

MEMORANDUM OPINION AND ORDER

The United States of America (“the government”) brought a Notice and Petition for an
Amended Rule to Show Cause against Defendant, Robert P. Aulston, Ill. The Government
contends that Defendant made false representations before the Court. The parties stipulated to
the underlying facts in this matter, but Defendant contends that the Government failed to prove,
beyond a reasonable doubt, that Defendant violated the criminal contempt statute. Presently
before the Court is Defendant’s Motion for Judgment of Acquittal. For the following reasons,
that motion is denied.

STIPULATED FACTS

On May 13, 2003, Robert P. Aulston, III, then counsel for both defendants in United

States v. Clinton Payne, HI, and Corey L. Gilkey, 03 CR 398, filed an attorney apperance form

with the Court. Mr. Aulston signed the appearance form and provided his name, his office

address in Detroit, Michigan, his telephone and fax numbers, and his electronic mail address,

£(

Mr. Aulston also noted his Illinois Attorney Identification Number on the appearance form,