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UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

In re: JEFFREY DICKSTEIN

Misc. Case No.: 3:10mc63/MCR/EMT

_______________________________/

NOTICE AND ORDER OF CRIMINAL CONTEMPT PROCEEDINGS

On August 31, 2008, attorney Jeffrey A. Dickstein filed a notice of appearance (doc.

43) on behalf of Claudia and Mark Hirmer in their criminal proceedings before this court.1

See United States of America v. Claudia Constance Hirmer, Mark Steven Hirmer, et al.,

Case No. 3:08cr79/MCR. On September 23, 2008, this court issued a Standing Order and

Notice to Retained Criminal Defense Attorneys advising Dickstein of his obligation to

provide representation through the appellate stage of the case regardless of fee

arrangements. (Doc. 124). One week prior, the court also expressed to Dickstein it would

not accept a motion to withdraw based on fee concerns. Dickstein thereafter represented

the Hirmers throughout months of pretrial preparation, including the review of voluminous

and electronically challenging discovery, followed by a four-week long trial in March 2010,

at the end of which the jury found both of the Hirmers guilty on all counts. Based on the 2

jury’s verdict, the court ordered a presentence investigation for each of the Hirmers and

In August 2008, Mark and Claudia Hirmer were named in a fifteen count indictment and charged

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with Conspiracy to Defraud the Internal Revenue Service and Commit W ire Fraud against the United States,

Conspiracy to Commit Money Laundering, Tax Evasion, and W ire Fraud. On August 31, 2008, Jeffrey

Dickstein appeared on behalf of both defendants. On September 16, 2008, the court conducted a hearing

on the matter of his joint representation of co-defendants, at the conclusion of which the court accepted the

defendants knowing, intelligent, and voluntary waiver of conflict-free counsel. See United States v. Garcia,

447 F.3d 1327, 1337 (11th Cir. 2006).

The government dismissed the wire fraud counts before trial. Additionally, Dickstein appeared on

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the Hirmers behalf at a hearing on an Emergency Motion For Reconsideration of Bail Denial Pending

Sentencing conducted two days after the jury’s verdict was returned.

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scheduled their sentencing hearings for July 30, 2010. On April 26, 2010, one month after

the guilty verdicts, Dickstein filed a Motion to Withdraw as Attorney for Claudia Hirmer and

Mark Hirmer, citing personal financial difficulties and his clients’ failure to pay his attorney’s

fees. (Doc. 1192). In an effort to preserve the Hirmers’ right to competent counsel and a

sentencing hearing without unreasonable delay, the court appointed Dickstein as CJA

counsel for the Hirmers based on its knowledge of the Hirmers’ financial status post-trial. 

(Doc. 1217). In response, Dickstein notified the court of his refusal to accept the CJA

appointment and, during a hearing, emphasized his intention to cease representation

notwithstanding the court’s prior Standing Order and its verbal admonishments. 

The Eleventh Circuit has “uniformly regarded the imposition of a penalty against

attorneys for a punitive purpose as a criminal contempt sanction.” United States v. KS &

W Offshore Eng’g, Inc., 932 F.2d 906, 908 (11th Cir. 1991) (internal marks omitted). 

Because criminal contempt proceedings are indeed criminal, one charged with criminal

contempt is entitled to the same constitutional protections due in all criminal proceedings.3

See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826-27 (1994). 

Thus, “[i]n proceedings for criminal contempt the defendant is presumed to be innocent,

he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to

testify against himself.” Romero v. Drummond Co., 480 F.3d 1234, 1243 (11th Cir. 2007)

(quoting Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444 (1911)) (internal marks

omitted). In the Eleventh Circuit, to establish criminal contempt, the government must

prove beyond a reasonable doubt that a reasonably specific order was violated and that

the violation was willful. See United States v. Bernardine, 237 F.3d 1279, 1282 (11th Cir.

2001). 

Although the undersigned recognizes that the contempt power is subject to abuse

and thus should be utilized sparingly by judges, the court cannot ignore an attorney’s

flagrant disregard of its orders, particularly when that disregard negatively impacts his

clients, both of whom are criminal defendants in this court. Therefore, pursuant to its

inherent and statutory contempt power, this court hereby sua sponte initiates criminal

The court may try criminal contempt without a jury when the actual penalty imposed does not

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exceed six months imprisonment. See Taylor v. Hayes, 418 U.S. 488, 495 (1974).

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contempt proceedings against Jeffrey Dickstein for willfully violating the court’s Standing

Order and Notice to Retained Criminal Defense Attorneys and its verbal order in open court

on September 16, 2009, advising him that he would be required to represent the Hirmers,

even if they could not pay his fees. See 18 U.S.C. § 401(3); Fed. R. Crim. P. 42(a).

As required by Rule 42(a)(1)(C) of the Federal Rules of Criminal Procedure, the

court now gives notice of the essential facts constituting the criminal contempt:

1. Dickstein initially appeared provisionally on behalf of the Hirmers on August

31, 2008, noting that the Hirmers’ funds were subject to forfeiture due to the criminal

charges and unless alternate financing was available, he would not represent the Hirmers

for more than seven days after the arraignment on September 2, 2008. (Doc. 43.) 

2. On September 8, 2008, in a Motion to Continue Trial, Dickstein wrote that,

“While Dickstein has agreed to represent the Hirmers, it is unlikely that he will receive

much, if any, compensation until such time as the trial is completed, and only if the Hirmers

are acquitted of Count 2, the conspiracy to commit money laundering count.” (Doc. 58.)

3. On September 16, 2008, during a hearing on the Motion to Continue Trial,

Dickstein again reiterated his concern that his clients did not have the funds to review and

prepare a defense regarding approximately 250 gigabytes of electronic discovery material. 

In response, the undersigned informed Dickstein that “your clients may never have the

funds available to them to prepare the type of defense that you would like to prepare” and

that the availability of any funding would not “dictate when this case gets set for trial.” 

(Doc. 1325, at 18-19.)

4. During the same hearing, the undersigned engaged Dickstein regarding his

representation and his clients’ possible lack of sufficient funds to pay his attorney’s fees.

(Doc. 1325, at 20.) When Dickstein affirmed that he had unconditionally agreed to

represent the Hirmers, the court followed up, “But you anticipate not being paid or perhaps

not being paid for this representation; is that correct.” Dickstein responded, “Unfortunately,

yes.” The undersigned then emphasized, “With that understanding, I’m sure you can

appreciate, the Court is not going to entertain a motion to withdraw, you have that

understanding, you [were] knowledgeable about their financial circumstances at the time

you agreed to represent them. I’m not going to entertain a motion to withdraw based on

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lack of compensation.” The undersigned emphasized to Dickstein that he was “on the

hook as far as this Court is concerned in terms of representing these defendants.” 

Dickstein acknowledged that he understood. (Doc. 1325, at 20-21.) 

5. Following the hearing, the court learned that its Standing Order and Notice

to Retained Criminal Defense Attorneys was inadvertently overlooked at the time of

arraignment and not posted on the court’s electronic docket. Therefore, on September 23,

2008, the court issued its Standing Order and Notice to Retained Criminal Defense

Attorneys, advising Dickstein (the only retained criminal defense attorney in the case) of

his obligation to provide representation to the Hirmers through the appellate stage of the

case regardless of fee arrangements. (Doc. 124.) Thus, notwithstanding its prior

admonishment in court, under the standing order, Dickstein technically still had another

seven days to withdraw based on fee concerns.

6. On November 17, 2008, Dickstein filed a Notice of Continued Representation 

indicating his intent to continue representing the Hirmers. (Doc. 220.)

7. On January 4, 2009, before trial, Dickstein filed a motion to dismiss two

counts of the indictment on grounds that the Sixteenth Amendment was never ratified by

the states and thus is unconstitutional. (Doc. 305). Following this court’s denial of the

motion, Dickstein sought a writ of mandamus from the Eleventh Circuit. After the writ was

denied by the Eleventh Circuit, Dickstein sought certiorari from the United States Supreme

Court, which was also denied. The court notes the following in connection with Dickstein’s

pursuit of this challenge:

a. Dickstein’s attorney time records reveal that he accrued

approximately $55,000 in attorney’s fees pursuing this defense, a

defense which could have been on direct appeal . (See doc. 1207.) 

b. In 1987, the Eleventh Circuit characterized a challenge to the

constitutionality of the Sixteenth Amendment as “frivolous.” See

Pollard v. Commissioner, IRS, 816 F.2d 603, 604 (11th Cir. 1987).

c. Dickstein has been admonished previously for pursuing this frivolous

claim. See United States v. Benson, 561 F.3d 718, 723 (7th Cir.

2009) (quoting an earlier case denying Dickstein’s client’s criminal

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appeal noting that “one would think this repeated rejection of

Benson's Sixteenth Amendment argument would put the matter to

rest”); United States v. Benson, 941 F.2d 598, 607 (7th Cir. 1991)

(noting that Dickstein’s client’s Sixteenth Amendment constitutionality

challenge was already “beyond review”); United States v. Collins, 920

F.2d 619, 629 (10th Cir. 1990) (noting that Dickstein’s arguments

disregard “uniform contrary authority”), cert. denied, 500 U.S. 920

(1991).4

 On February 4, 2010, in response to a motion in limine from the government to exclude tax defier

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evidence, Dickstein advised the court of a “commission of a felony by the members of the prosecution team”

in conspiring to prevent his clients from testifying and presenting a defense regarding their view that the 16

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Amendment is unconstitutional. (Doc. 788). Dickstein went on to note that “the failure of the Court to remain

neutral under the facts and circumstances of this case could only lead to the conclusion that the Court is part

of the conspiracy to prevent the Hirmers from presenting testimony and defense on the merits of the issues,”

going so far as to suggest that by granting the government’s motion in limine and preventing the Hirmers from

testifying to their views on the 16 Amendment at trial the undersigned would be complicit in the felony. (Doc.

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788.)

The court notes that Dickstein has previously been sanctioned in federal courts of the Ninth and Tenth

Circuits. In 1986, Dickstein’s pro hac vice admission to the District of Alaska was revoked after local counsel

refused to assume responsibility for Dickstein’s pleadings. See Donnell v. United States, No. A84-416 Civil

(D.Alaska Jan. 16, 1986) (unpublished), as discussed in United States v. Collins, 920 F.2d 619, 623 n.2 (10th

Cir. 1990), cert. denied, 500 U.S. 920 (1991). The following year, in 1987, Dickstein represented a defendant

in a five-day trial then withdrew as counsel before sentencing. Despite repeated violations and warnings from

the court, Dickstein was not held in contempt during the trial. After the trial and at the government’s behest,

the court held a hearing to determine whether to revoke Dickstein’s pro hac vice admission. The court

revoked his status and formally censured him for his behavior during trial and his failure to appear at the

sanction hearing. The Ninth Circuit upheld the penalty. See United States v. Summet, 862 F.2d 784 (9th Cir.

1988). Based on his behavior in Summet, the United States District Court for the District of Nevada denied

Dickstein’s application for pro hac vice admission. After the denial, Dickstein remained in the courtroom and

continued to disrupt proceedings over the court’s admonishments until he was eventually ejected by the United

States Marshal. See Nutter v. United States, No. CV-88-17-PMB (D.Nev. Jan. 21, 1988) (unpublished), as

discussed in United States v. Collins, 920 F.2d 619, 623 n.2 (10th Cir. 1990), cert. denied, 500 U.S. 920

(1991). In 1989, while Dickstein was representing a tax protestor, his initial filings in the district court included

an 84 page motion to dismiss “lavishly larded with citations to the Declaration of Independence, colonial

history and a plethora of nineteenth century Supreme Court cases.” See Collins, 920 F.2d at 623. The district

court characterized Dickstein’s motions as evincing “a tactic of obfuscation and waste” and ordered Dickstein

to show cause why his pro hac vice admission should not be revoked. Id. Dickstein responded by restating

his legal arguments and demanding the judge’s recusal. The court revoked his admission and removed him

from the case, and the circuit court upheld the removal. See id. In 1995, the Tenth Circuit upheld the

revocation of Dickstein’s pro hac vice admission by the district court. After a mistrial and without a hearing,

the district court revoked admission because of conduct “unprofessional and obstructive of the judicial

process” including informing the jury it was not compelled to follow the law given by the court and smiling and

shaking his head at adverse rulings. See United States v. Holland, No. 94-5234, 1995 W L 539589, at *1 (10th

Cir. Sept. 11, 1995). In 1996, the United States District Court for the District of Kansas revoked Dickstein’s

pro hac vice admission because Dickstein omitted his previously revoked admissions and formal censure from

his application affidavit. The court, after a hearing before the magistrate judge and a government motion

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8. At the April 2, 2010, hearing on the Hirmers’ Emergency Motion for

Reconsideration of Bail Denial Pending Sentencing, the evidence showed that Dickstein

had been paid approximately $122,500 in connection with his representation of the

Hirmers. Dickstein’s submissions in support of his motion to withdraw, filed on April 29,

2010, show that he has been paid $146,219.06 in fees and costs, and that the sum of

$308,210.67 remains unpaid. (Doc. 1207.)

9. On April 26, 2010, Dickstein filed a Motion to Withdraw as Counsel, citing

financial struggles, which he blamed on the Hirmers for their failure to pay his fees.5

(Doc. 1192.) Solely in an effort to preserve the Hirmers’ right to competent representation

at sentencing and a sentencing hearing without unreasonable delay, the court appointed

Dickstein as CJA counsel. (Doc. 1217.) On May 17, 2010, Dickstein filed a Motion for

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Reconsideration, again noting financial difficulties, arguing for the first time that his clients

had accused him of unethical conduct during his representation, there was a purported 7

conflict of interest and, because of previous payments from his clients, he would not be 8

paid through a CJA appointment. (Doc. 1224.) The motion also stated that “Dickstein can

requesting revocation, found that “Dickstein's omissions and misstatements in his affidavit and his responses

to the magistrate judge were materially misleading” and that the court would not have granted admission with

knowledge of the prior sanctions. See United States v. Howell, 936 F. Supp. 767, 774 (D. Kan. 1996).

Dickstein initially maintained he was unable to pay for rent, food, utility, and other bills; and that he

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was vacating his home. He also contended that he did not have sufficient funds to travel to attend the

sentencing hearing or to pay the filing fee to perfect an appeal. In his motion for reconsideration, Dickstein

also claimed he was unable to pay his state and federal taxes because he was planning to use his trial fee

to make those payments. He complained he was subject to IRS penalties and that his credit report had been

ruined. At the hearing on his motion for reconsideration, Dickstein indicated that his credit card was in default.

The undersigned was keenly aware of how difficult it would be to find separate attorneys to accept

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representation of the Hirmers, given the complexity of the charges and the extensive trial record, as well as

an impending sentencing hearing. Each faces a lengthy term of imprisonment.

Dickstein alleged that the Hirmers accused Dickstein of providing an inadequate closing argument

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and failing to provide adequate representation due to the consumption of alcohol during trial.

Dickstein wrote that he represented the Hirmers as well as co-defendants Dover Perry and Michael

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Leonard in a civil action predating the criminal case, United States v. PQI. 3:08cv136 (N.D. Fla.). After the

criminal convictions in this case, the government indicated that it would discuss settlement with the civil

defendants as part of its pre-sentencing negotiations. Dickstein argued that he had a conflict of interest with

the Hirmers and with Perry and Leonard, noting that he cannot represent their settlement interests in the civil

case with them as part of the pre-sentencing in the criminal case. The court need not address the merits of

this argument at this time.

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categorically represent to the Court he no longer has the best interest of the Hirmers at

heart, and is now spiritually, emotionally, and physically incapable of providing adequate

representation, and is unwilling to do so.” (Doc. 1224.)

10. This court held a hearing on Dickstein’s motion for reconsideration on June

3, 2010, at which Dickstein, who joined by telephone claiming he could not afford to travel

to the court to attend in person, indicated he would not accept the court’s appointment.

11. At the hearing, when asked whether they intended to obtain new counsel,

Claudia Hirmer replied, “I don’t think it’s fair that we’re in this position.” (Doc. 1334 at 9.) 

When asked whether she wanted Dickstein as her attorney, Claudia Hirmer continued,

“No. He said he doesn’t have our best interest at heart anymore. How can we have an

attorney that doesn’t care about our position anymore?” When the undersigned told

Claudia Hirmer that she had not requested Dickstein be removed from the case, she

replied, “We haven’t had counsel. He abandoned us.” The undersigned notes that Ms.

Hirmer was visibly distressed over the situation. (Doc. 1334 at 9.)

12. Based on Dickstein’s unequivocal refusal to continue representing the

Hirmers and the court’s need to find substitute counsel as soon as possible, the court

concluded it had no choice but to grant the motion to withdraw. The withdrawal has 9

delayed sentencing proceedings by seven weeks.

Accordingly, it is hereby ORDERED:

1. Jeffrey A. Dickstein is required to appear before the court on a charge of

criminal contempt at 9:00 a.m. on September 29, 2010, pursuant to 18 U.S.C. 401(3) and

Fed. R. Crim. P. 42(a). The trial will be held in Courtroom 4 North, United States District 10

Regardless of the phraseology used, the court’s intention at the time was to remove Dickstein from

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the case. Certainly, the court could have denied the motion to withdraw and waited to see whether Dickstein

would have represented the Hirmers during the presentence investigation and appeared at sentencing;

however, based on Dickstein’s unequivocal refusal to continue representing the Hirmers, this undoubtedly

would have worked only to the Hirmers’ disadvantage. As it stands, the Federal Defenders Office had

difficulty finding CJA counsel to represent the Hirmers because the local CJA panel had been exhausted as

a result of other attorney appointments in the case. Eventually, counsel was located in Tallahassee, 200 miles

away. The Hirmers’ sentencings are now scheduled for September 17, 2010, seven weeks after their original

date. The Hirmers continue to remain in custody in the county jail.

By the time of the contempt trial, all defendants in this case should have been sentenced, and,

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thus, the court’s jurisdiction suspended, at least until all appeals are concluded. Nonetheless, “the Supreme

Court has specifically held that ’[a] court may make an adjudication of contempt and impose a contempt

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Court for the Northern District of Florida, Pensacola Division, located on One North Palafox

Street, Pensacola, Florida 32502.

2. Jeffrey A. Dickstein has the right to the representation of counsel, the

presumption of innocence, the privilege against self incrimination, to prepare a defense

and to present witnesses, and to proof of guilt beyond a reasonable doubt before any

criminal sanction may be imposed.

3. Jeffery A. Dickstein must notify the court within seven calendar days of

service of this order if he desires court appointed counsel. If court-appointed counsel is

requested, Dickstein will be required to provide the requisite financial information for the

court to make a determination of his right to such appointment.

4. The court hereby requests that this matter be prosecuted by the United

States Attorney’s Office for this district. See Fed. R. Crim. P. 42(a)(2). Unless this request

is declined in writing by that office by August 25, 2010, the court so appoints the United

States Attorney’s Office to prosecute the contempt.

5. This matter will be tried to the court.

6. The clerk shall issue a summons and forward a copy of this order to the

United States Marshal Service for prompt service on Jeffrey A. Dickstein, at the address

listed in the attached sealed document, or wherever he may be located.

7. The clerk shall provide a copy of this order to The State Bar of California, The

State Bar of Wisconsin, the Oklahoma Bar Association, and to Claudia and Mark Hirmer,

a the addresses listed in the attached sealed document.

DONE AND ORDERED this 18th day of August, 2010.

 s/ M. Casey Rodgers 

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE 

sanction even after the action in which the contempt arose has been terminated.’" Bush Ranch, Inc. v. E.I.

DuPont de Nemours & Co. (In re E.I. DuPont de Nemours & Co.-Benlate Litig.), 99 F.3d 363, 368 (11th Cir.

1996) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990)) (alteration in original), cert. denied,

522 U.S. 906 (1997).

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