Appeal from the United States District Court for the District of Columbia (92cr00284-01)
Before: Silberman, Sentelle and Henderson, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
In re: Daniel E. Ellenbogen, Appellant
Opinion for the Court filed by Circuit Judge Sentelle.
The District Court summarily convicted appellant Daniel E. Ellenbogen for criminal contempt of court under 18 U.S.C. Section(s) 401(2) and (3), imposing a fine of $1,000. After his motion for reconsideration failed, Ellenbogen filed this appeal, claiming that (1) summary contempt procedures were inappropriate in this case and (2) the record does not contain sufficient evidence to support his contempt conviction. Because we hold that the District Court did not abuse its discretion in employing summary contempt procedures and because the record unambiguously shows that Ellenbogen violated a clear ruling issued by the court, we affirm Ellenbogen's contempt conviction.
Daniel E. Ellenbogen served as court-appointed co-counsel for Mark Hoyle, one of seven defendants tried on drug, murder, conspiracy, kidnapping and other charges stemming from their alleged participation in the "Newton Street Crew" narcotics distribution organization. Several other Newton Street Crew defendants had already been tried in previous trials. Some had been acquitted. Hoyle's trial lasted from May 3, 1994, until October 13, 1994. Soon after it began, on May 19, 1994, the District Court granted the government's in limine motion to prevent defense counsel from cross-examining government witness Lazaro Santa Cruz about any of the verdicts in the prior Newton Street Crew trials, particularly the trials of Demi Sanya and Michael Jones. Santa Cruz, originally a defendant in one of the cases, had traded his testimony against his co-defendants in the previous trials for a lenient sentence.
On May 24, 1994, five days after the granting of the in limine motion, the witness Santa Cruz had completed his direct testimony and undergone cross examination. Defense counsel had thoroughly examined Santa Cruz about his cooperation with the government. The prosecution returned to that subject on redirect and asked, "[w]hen you talked about cooperation you made the statement, "I am not a recruiter.' What did you mean by that?" After a more direct answer to the question, to the effect that he was not "trying to draft" other people to the government and engage in "snitching" he volunteered that another defendant who did not want to cooperate had gone to trial "and he lost." Jensen Barber, co-counsel with Ellenbogen for defendant Hoyle, asked if that meant that the defense could now question witnesses about acquittals in other trials, but the court responded in the negative. The following day, Ellenbogen submitted a suggested cautionary statement to the jury providing that Santa Cruz's statement about the outcome in another trial was irrelevant to the Hoyle case. The court gave the instruction.
Over four months went by without further discussion of the admissibility of the trial outcomes of the other Newton Street Crew defendants. Then, in September 1994, the prosecutor solicited testimony from Santa Cruz on redirect examination about Santa Cruz's testimony in other trials. Santa Cruz stated that he had testified in many other trials, and that his testimony had always been recorded by a stenographer. Ellenbogen, on recross examination, then questioned Santa Cruz about the other trials:
Q. Mr. Howes [the prosecutor] asked you about testifying in other proceedings in ...