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November 17, 1983


The opinion of the court was delivered by: SWEET


Prior to sentence defendant Chokwe Lumumba ("Lumumba") has filed a "Motion in Opposition to Contempt Citation" and a "Motion to Dismiss the Contempt Charges." The court will consider them as a single motion to challenge his criminal contempt conviction and for the reasons stated below will deny the motion.

 The Honorable Kevin T. Duffy, United States District Judge for the Southern District of New York, presided over the five-month RICO conspiracy trial of United States v. Shakur, 82 Cr. 312. Lumumba, co-counsel for defendant Bilal Sunni-Ali, was held in contempt on two occasions during the trial, April 13, 1983 and June 8, 1983. On September 6, 1983, Judge Duffy entered a memorandum and order setting forth the events giving rise to the summary criminal contempt convictions entered under Fed.R.Crim,P. 42(a). On September 7, 1983, Judge Duffy amended his September 6 order by referring the case to the Assignment Committee for transfer "for further proceedings including the determination of the appropriate punishment to be imposed." The Assignment Committee directed the customary selection by lot from the appropriate criminal assignment wheel.

 The court initially set this case for sentencing on October 27, 1983. Lumumba's Motion in Opposition to Contempt Citation having been filed on October 20, 1983, the court instead heard the motion. Immediately prior to the hearing, Lumumba presented his Motion to Dismiss the Contempt Charges. At the conclusion of the October 27 hearing, the court reserved its decision and, upon consulting all the attorneys involved, permitted the Government and the defendant to submit additional memoranda on November 2 and November 10, respectively. The Government has made such a submission and, as of the date of this decision, the defendant has not.

 Lumumba's challenge of the contempt convictions has two prongs. First, he maintains that Rule 42(a) summary disposition was employed when notice and a hearing under Rule 42(b) should have been used, and he urges this court to vacate the conviction and initiate a new contempt proceeding utilizing the procedures of Rule 42(b) including trial by jury. Second, Lumumba maintains that, as a Vice President and Minister of Justice for the Provisional Government of the Republic of New Africa ("RNA"), he is immune from criminal prosecution. He concludes that Judge Duffy was without jurisdiction to hold him in contempt and that this court is without jurisdiction to sentence him.

 The court is not in a position to review Judge Duffy's choice of the Rule 42(a) procedure.Lumumba argues that the September 7, 1983 amended order suggested that Judge Duffy had recused himself and had ordered that the subsequent court hold a de novo hearing pursuant to Rule 42(b). That argument lacks merit. The amended order reads, in pertinent part:

 The conduct reflected both in the two contempt specifications and the total trial transcript was clearly contemptuous. Accordingly, pursuant to the power vested in me by 18 U.S.C. § 401 I hereby hold Mr. Lumumba in contempt of court. Pursuant to Rule 18 of the Rules of this Court the matter is referred to the Assignment Committee for transfer by lot for further proceedings including the determination of the appropriate punishment to be imposed on the respondent Chokwe Lumumba for the specified findings of contempt.

 There is no question that Judge Duffy held Lumumba in contempt and did not intend the transferee court to retry Lumumba's conduct.

 Furthermore, this court cannot discover a basis for reviewing Judge Duffy's decision to proceed by summary disposition, and none has been cited, not surprisingly, given the somewhat unusual procedural route the case travelled to reach this court. *fn1" However, Fed.R.Crim.P. 25(b) provides a useful analogue to assist this court in determining its role in this case. The rule reads, in pertinent part:

 If by reason of absence, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties....

 The imposition of sentence by a successor judge has been permitted under Rule 25. See, e.g., Government of Canal Zone v. O'Calagan, 580 F.2d 161, 164-65 (5th Cir. 1978), cert. denied, 439 U.S. 990, 58 L. Ed. 2d 664, 99 S. Ct. 589 (1978); United States v. McCallie, 554 F.2d 770, 774 (6th Cir. 1977); United States v. Bryant, 430 F.2d 237, 240-41 (8th Cir. 1970). The order of Judge Duffy, the briefs filed on behalf of Lumumba, the presentence report, the numerous letters received, and the arguments of counsel have educated the court on the facts of the case sufficiently to enable it to proceed with the sentencing.

 However, Rule 25 does not justify this court, as a successor court, to sit in appellate review of Judge Duffy's actions. See United States v. Sisk, 629 F.2d 1174, 1179 (6th Cir. 1980), cert. denied, 449 U.S. 1084, 66 L. Ed. 2d 809, 101 S. Ct. 871 (1981). The imposition of sanctions on this criminal contempt conviction transforms it into a final judgment under 28 U.S.C. § 1291, ripe for review by the Second Circuit Court of Appeals. See I.B.M. v. United States, 493 F.2d 112, 114 (2d Cir. 1973), cert. denied, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974). Lumumba will have ample opportunity to challenge his conviction in the proper forum.

 With respect to Lumumba's claim of immunity, he cites only the authority of 18 U.S.C. §§ 112, 1116. These sections involve the assault on or murder of foreign officials and are obviously irrelevant to the issue at hand. The Government deals with Lumumba's claim of immunity by referring to the Vienna Convention on Diplomatic Relations ("the Treaty"), April 18, 1961, 23 U.S.T. 3227 *fn2" and the corresponding U.S. statute, 22 U.S.C. §§ 254a-254e.

 Lumumba has not sought diplomatic immunity under the Treaty nor would it be possible for him to qualify for such immunity.Article 4(1) of the Treaty provides: "The sending State must make certain that the agrement [acceptance] of the receiving State has benn given for the person it proposes to accredit as head of the mission to that State." The status of others as diplomatic agents hinges on the receiving State accepting the head of the mission. In the United States, recognition by the Department of State is ...

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