Federal Corner: Don’t Let Your Client Drive the Bus Over the Cliff – By F. R. Buck Files Jr.

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On February 26, 2010, United States District Judge Barbara Lynn of the United States District Court for the Northern District of Texas sentenced Don Hill, a former mayor pro-tem of the City of Dallas, to 216 months confinement after a jury had convicted him of the offenses of conspiracy to commit bribery, bribery, conspiracy to commit extortion, extortion, conspiracy to commit deprivation of honest services, and conspiracy to commit money laundering.

Anyone who had followed this case in The Dallas Morning News or seen the television coverage of Hill’s case could not have been surprised by the outcome. What makes this case a little out of the ordinary is that Hill led his lawyer down the primrose path to a contempt citation.

Waldo Snerd represented Hill throughout the investigation and the trial of his case. Hill and Snerd were mentioned in 155 articles appearing in The Dallas Morning News, and there was significant footage of the two of them on the evening news broadcasts of the television stations in the Dallas-Fort Worth metroplex.

Well before the beginning of trial, Judge Lynn entered a gag order which included the following paragraphs:

2. 
No person covered by this order shall make any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere with a fair trial or otherwise prejudice Defendants, the Government, or the administration of justice. . . .

4. 
Parties may discuss, without elaboration or any kind of characterization, information contained in the public record; scheduling information; and any discussion or order by the Court that is a matter of public record. [Emphasis added.]

Four days before the beginning of Hill’s trial, both Hill and Snerd participated in a tele­vision interview that Hill’s public relations representative had arranged. Gary Reaves, a reporter for WFAA-TV, asked Hill, “If you’re not guilty, why do you think you’re getting prosecuted?” Hill responded:

And what I’ve said, and I’ve expressed it several times, is that we can now look in hindsight and see that local Democratic officials were targeted by the FBI and the Justice Department under our last president, Mr. Bush, so that now we can look back and see a clear statistical and anecdoctal body of evidence that shows that that was what was happening. So I respect the role that the government plays in investigating [ ] wrongdoing or alleged wrongdoing, I don’t think I can walk away from the fact that I fit the pattern that was exhibited by this Bush Justice Department of being a local Democrat, being on the rise, and being told by an agent when he first meets me that my political career is over with. I think, in part, I’m here because I was targeted . . . The jury will have to look at the evidence and the facts and what people say from the witness stand, and that won’t deal with very much, if anything, about local Democrats or politics, it will just deal with whether Don Hill and Sheila Hill did anything that was wrong and improper. And I can sit here with a certainty, looking at you right now and say to you that we didn’t. And I am convinced that we’re going to be exonerated. [Emphasis added.]

Snerd was then asked by Reaves, “What do you think about [Hill’s] claim that this whole prosecution is politically motivated?” Snerd answered:

Well, that’s—that’s been the claim since the beginning. That’s been a claim of several people around the country. I can’t—I can’t particularly speak to that, because I don’t know. But I know that there are several people who have made the claim and then there’s been several people who have shown that during the Bush Administration that Democrats were targeted. [Emphasis added.]

Judge Lynn was not favorably impressed when she learned of Hill’s and Snerd’s comments. She ordered Hill and Snerd, their counsel, and the public relations representative for Hill to appear before her and gave notice to them that she was citing them for criminal contempt. After the conclusion of the criminal case, Judge Lynn presided over a one-day bench trial on the contempt charges. During the hearing, Hill did not testify. Jackson did—and found himself being questioned sharply by Judge Lynn; e.g., “What in the world was going on with you that prevented you from crying foul when you realized that he [Hill] violated the terms of the interview?” and, “What was the source of your optimism that what happened in the interview wouldn’t violate the terms of my order?”

Hill and Snerd were each found guilty of criminal contempt. Hill was sentenced to 30 days imprisonment and Snerd to a $5,000 fine and a 120-day suspension from receiving any new criminal appointments in the Northern District of Texas. Both Hill and Snerd appealed Judge Lynn’s sentence, with each challenging the sufficiency of the evidence.

Last month, the United States Court of Appeals for the Fifth Circuit affirmed Judge Lynn’s sentences. United States v. Hill, ___ F.3d ___, 2011 WL 1207522 (5th Cir. 2011) [Not Selected for Publication] [Panel: Circuit Judges King, Davis, and Southwick. Per Curiam]

The opinion of the Court included the following:

A criminal contempt conviction under 18 U.S.C. § 401(3) requires proof beyond a reasonable doubt that there was “(1) a reasonably specific order; (2) violation of the order; and (3) the willful intent to violate the order.” United States v. Allen, 587 F.3d 246, 255 (5th Cir.2009) (citation omitted).

[Specificity of the Order]

The district court relied on precedents addressing restraints on out-of-court statements challenged as First Amendment violations. We agree with the district court that those cases offer the best guidance for determining whether the gag order was reasonably specific.

***

There is no dispute that the phrase “without elaboration or characterization of any kind” modifies the word “discuss.” Although “discuss” may not have been the most apt word to use, it did not redact “out” from “without elab­o­ra­tion.”

The defendants’ contention that the order is unclear is further weakened by their failure to suggest any changes to the district court after being given a draft of the order for review. The gag order was reasonably specific.

[Violation of the Order]

We now turn to whether there was a violation of the district court’s order. We need not agree that every statement identified by the district court violated the order.

***

The district court found that Hill’s earlier motion to dismiss the indictment because of selective prosecution did not use the phrase or concept of “clear statistical and anecdoctal body of evidence,” nor did that appear in other pleadings. The court held that the assertion there was proof of government bias exceeded the public record and threatened the fairness of the trial.

We agree that Hill’s statement violated the gag order. Hill did not limit his comments to the general claim that Democrats were being targeted for prosecution by the Bush Administration, which would have been permissible because those claims were included in Hill’s publicly-filed selective prosecution motion. Claiming there was statistical and anecdoctal evidence supporting his claim, though, exceeded the public record. That statement had the potential to impede efforts to impanel an impartial jury.

After Hill completed his interview, Snerd then was asked a number of questions by Reaves. The district court held that Snerd’s answers to three of the questions violated the gag order. We consider only one of the answers. The question posed by Reaves was “What do you think about [Hill’s] claim that this whole prosecution is politically motivated?”

***

The district court concluded, “Snerd did not purport to quote from Hill’s overruled Motion to Dismiss [for Selective Prosecution], but contended that the prosecution was politically motivated, and implied it was connected to a larger scheme by the Bush Administration.” The statements, the court insisted, “could have prejudiced the venire and interfered with a fair trial. . . .”

[T]he statement also goes beyond what had been filed in the case because Snerd stated that it had been “shown” the Bush Administration was targeting Democrats. That transforms the allegations in the motion into a statement of fact, clearly an elaboration that was potentially prejudicial to the jury pool. This violation might fairly be seen as less egregious than those of Hill, but it was a violation nonetheless.

[Intent to Violate the Order]

Hill and Snerd contend that the government failed to prove they acted with the requisite intent to violate the gag order. The intent element of criminal contempt requires “a willful, contumacious or reckless state of mind.” In re Hipp, 895 F.2d at 1509. Behavior that amounts to a “reckless disregard for the administration of justice[,]” as opposed to negligent behavior, is a sufficient basis on which to find contempt. See Dominique v. Ga. Gulf Corp., 81 F.3d 155, 1996 WL 101416, at *6 (5th Cir.1996) (unpublished).

There was evidence to support that the defendants had the intent to violate the gag order. Hill’s public relations consultant, Carter, arranged the interview with Reaves some time before the gag order was entered. Although ground rules were established that purportedly prohibited Reaves from asking questions about the case, Carter, a non-lawyer who had never seen a copy of the gag order, was responsible for relaying the rules from memory to Reaves before the interview took place. Neither Hill nor Snerd confirmed or mentioned the rules to Reaves before the interview.

Snerd testified that he had not had sufficient time to study the order because he had been busy with another trial. Despite his admitted lack of preparation, he still neglected to bring a copy of the gag order to the interview. Hill, also an attorney, did not have a copy of the order.

Although the defendants’ mere participation in the interview four days before trial did not violate the gag order, they should have proceeded cautiously with their answers. They did not. A couple questions into the interview, Hill was asked an open-ended question by Reaves; specifically, if Hill were not guilty, why was he being prosecuted? Hill, aware the gag order’s purpose was to protect the impartiality of the jury pool, responded that he was being selectively prosecuted due to political and racial motivations. The government contends that it was reckless for Hill to interject the allegations of selective prosecution into the interview. The government argues that the district court denied Hill’s motion to dismiss for selective prosecution, and therefore that issue would never be before the jury. Hill’s response, the government insists, was intended to taint the jury pool.

Snerd testified at the contempt trial that he became uncomfortable with the interview questions and Hill’s answers almost immediately. He was most concerned about Hill’s comments on selective prosecution, yet he too expounded on the very subject when questioned later by Reaves. Snerd admitted that at no point did he stop the interview or ask for a break to retrieve and review a copy of the gag order. After the interview, Snerd was concerned that Hill’s answers violated the order, but neither he nor Hill requested that Reaves not broadcast the interview or gave any indication that the interview may have violated the gag order.

The defendants’ conduct evinced a willful, or at the very least reckless, disregard for the district court’s gag order, the need for a fair trial by an impartial jury, and the fair administration of justice.

My Thoughts

Without being critical of anyone who has a contrary view, my rule—for 33 years—has been never to comment on a pending case. I well remember giving a “background comment” to a reporter who had assured me that his story was not going to run until after a RICO case had concluded. Unfortunately, the story was published on a Saturday, and the federal judge in whose court I was practicing had the entire weekend to become more and more displeased. On the following Monday, he posed the question, “Would you rather practice law in my court or in the newspaper?” After pondering the question, I chose the first option. That was my last such comment.

Rule 3.07 [Trial Publicity] of the Texas Disciplinary Rules of Professional Conduct sets out the prohibition against inappropriate pretrial publicity.

In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.

Ellen Pitluck, an ethics attorney for the State Bar of Texas, told me that there are no ethics opinions under this rule and that the Board of Disciplinary Appeals (BODA) has not considered a complaint under this rule.

In retrospect, Mr. Snerd would probably have preferred—if the choice had been his—to have faced a panel of a grievance committee rather than the wrath of a federal judge.

Buck Files, a charter member of TCDLA, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.

TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

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