## Facts

- Harold A. Thoreen, a lawyer, represented William Sibbett in a non-jury criminal contempt trial for allegedly violating a preliminary injunction against salmon fishing.
- Thoreen arranged for Clark Mason, who resembled Sibbett, to sit at counsel table in outdoor clothing while Sibbett sat behind the rail in a business suit and glasses.
- Thoreen neither sought the court’s permission nor informed the court or the government of the substitution.
- On Thoreen’s motion, the court ordered sequestration of witnesses, yet Mason remained in the courtroom at counsel table.
- During trial, Thoreen acted as if Mason were his client, conferred with him, and failed to correct the court when the court treated Mason as the defendant and the record reflected that identification.
- Two government witnesses misidentified Mason as Sibbett.
- Thoreen later called Mason to testify and revealed his true identity, after which the government reopened its case, recalled a witness, and obtained a correct identification of Sibbett.
- The trial judge found the maneuver deceptive, disruptive, and obstructive, and summarily held Thoreen in criminal contempt for conduct occurring in the court’s presence.
- Thoreen filed a notice of appeal that the district court treated as untimely; the appellate court reviewed both timeliness and the contempt adjudication.

## Issues

1. Whether Thoreen’s notice of appeal could be treated as timely under Federal Rule of Appellate Procedure 4(b) based on excusable neglect.
2. Whether an attorney may be summarily held in criminal contempt for a courtroom substitution scheme that deceives the court and witnesses, violates a sequestration order and courtroom practice, and obstructs proceedings.

## Decision

- The court of appeals reversed the district court’s determination that the appeal was untimely, holding excusable neglect permitted consideration of the appeal.
- The court of appeals affirmed the criminal contempt judgment.
- The court held the trial judge acted within his authority to punish contempt summarily because the misconduct occurred in the actual presence of the court and obstructed the administration of justice.

## Legal Principles

- Under Federal Rule of Appellate Procedure 4(b), a criminal defendant’s late notice of appeal may be accepted if excusable neglect is shown, including where confusion about entry or timing of judgment causes a brief, non-prejudicial delay.
- Criminal contempt may be imposed for willful conduct in the court’s presence that obstructs the administration of justice or shows disregard for the court’s authority and processes.
- Zealous advocacy does not permit deliberate deception of the tribunal; staging a false identification scenario at counsel table without disclosure to the court may constitute contempt when it misleads the court and witnesses and causes disruption or delay.
- A lawyer’s violation of a sequestration order, when used to facilitate deception during trial, supports a contempt finding.

## Conclusion

The Ninth Circuit allowed the appeal on an excusable-neglect showing but affirmed summary criminal contempt because counsel’s undisclosed substitution of a look-alike at counsel table, coupled with violation of sequestration and failure to correct the court, deliberately misled the proceeding and obstructed the court’s administration of justice.


United States v. Thoreen, 653 F.2d 1332 (9th Cir. 1981)