On Appeal from the United States District Court for the District of New Jersey, Criminal No. 85-00292.
Sloviter, Mansmann and Scirica, Circuit Judges.
In one of the two appeals before us, Matthew P. Boylan, a New Jersey attorney, and the law firm of Lowenstein, Sandler, Kohl, Fisher & Boylan (Lowenstein), in which Boylan is a partner (hereafter jointly referred to as "Boylan"),*fn1 appeal from the order of the United States District Court for the District of New Jersey, entered February 29, 1988, holding them in contempt for refusing to assume the representation of defendant Anthony Accetturo in an ongoing criminal trial and imposing civil sanctions upon them for refusing to do so. In the second appeal, Douglas L. Williams, a Florida attorney, appeals from a similar order as to him entered March 1, 1988 holding him in contempt and imposing similar sanctions. Williams also filed an "Alternative Emergency Petition(s) for Writ(s) of Prohibition, Mandamus and Commonlaw Certiorari" arising out of the same matter. We expedited the appeals and heard oral argument on the merits as soon as the government's response was received.*fn2
Defendant Anthony Accetturo was indicted by a grand jury of the United States District Court for the District of New Jersey, along with twenty-five other co-defendants, in August 1985 for, among other things, conspiring to violate the Racketeer Influenced Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d) (1982). On September 13, 1985, attorney Milton Ferrell, Jr. (Ferrell, Jr.) filed a notice of appearance for defendant Anthony Accetturo. On the same day, appellant Matthew Boylan also filed a notice of appearance which stated, "you are hereby notified that I appear as Local Counsel to Milton Ferrell, trial counsel, the defendant in the above-entitled matter." App. at 2. Simultaneously with his notice of appearance, Boylan sent a letter to Judge Harold A. Ackerman, to whom the case was assigned, which stated in part:
Please be advised that we have been retained by Anthony Accetturo to serve as local counsel in conjunction with Milton M. Ferrell, Jr., chief counsel and trial counsel for the defendant, Accetturo, in the above captioned matter. We intend to be available to coordinate all pending motions with other New Jersey counsel and to take the necessary steps to protect the interest of Mr. Accetturo up to the time when this matter goes to trial, at which point Mr. Ferrell will conduct the trial of this matter.
During the fourteen months of pre-trial preparation, Ferrell, Jr. and/or Boylan made numerous motions on behalf of Accetturo related to procedural or substantive matters, including a motion to suppress. On November 16, 1986, the day the trial of Accetturo and more than twenty co-defendants commenced, Boylan moved for the admission pro hac vice of Milton Ferrell, Sr. (Ferrell, Sr.), the father of Ferrell, Jr., to serve as trial counsel for Accetturo. No other counsel appeared for Accetturo during the fifteen month period the proceeding has stretched on, which is still in the midst of the prosecution's presentation of its case.
On February 16, 1988, when the trial resumed following a four-day holiday weekend, Accetturo notified the court that Ferrell, Sr. had taken ill and was diagnosed as having advanced terminal cancer requiring his immediate hospitalization. Accetturo thereafter filed a severance motion which was argued by special counsel on February 24, 1988. Counsel explained that Accetturo's objection was not to either Ferrell, Jr. or Boylan as his counsel, and that Accetturo "will take any qualified counsel who has an adequate time, given the context of this case, to prepare a defense." App. at 36. It was, however, Accetturo's position that no counsel "could step into this case within a reasonable period of time and . . . give the adequate assistance of counsel that the constitution requires." Id. at 37.
Boylan filed an affidavit in which he averred that he spent 43.4 hours on Accetturo's case and that an associate of his spent 18.5 hours during the pretrial period; that he had no substantive involvement; that he provided research and advice on New Jersey law; that he met with Accetturo and Ferrell, Jr. before the arraignment; that he appeared at Accetturo's bail hearing and participated in his appeal to this court from the denial of bail; but that he "played no role whatsoever in the defense of the case," and that his participation had ceased with the commencement of the trial, except for his receipt of some papers served on him for the first month and a half of the trial. App. at 7-9. Boylan reiterated these facts before the court at the hearing on February 24, 1988. App. at 75-76.
On the following day, February 25, 1988, Douglas Williams appeared before the court, having flown in from Miami at the court's request. Williams stated that Ferrell, Jr. and Ferrell, Sr. had not practiced law together since 1982; that Ferrell, Jr. and Williams became partners in July 1987; that he had never seen Accetturo; that he had commitments in other criminal cases, some of which he specified, scheduled to begin in March or April; and that he has no "familiarity with any aspect of these proceedings whatsoever." App. at 114. ...