783. Direct Contempt—Certification of Judge Under Rule 42(a) of the Federal Rules of Criminal Procedure

Under Rule 42(a) of the Federal Rules of Criminal Procedure, the judge in a summary criminal contempt action must certify that "the judge saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record." The conduct described in the certificate must in itself constitute contempt. See Hallinan v. United States, 182 F.2d 880 (9th Cir. 1950), cert. denied, 341 U.S. 952 (1951). This is because "the function of the certificate is not to give notice to the defendant or to frame an issue to be tried, but solely to permit an appellate court to review the judge's action." In re Williams, 509 F.2d 949 (2d Cir. 1975); United States v. Schrismsher, 493 F.2d 842 (5th Cir. 1974); United States v. Marshall, 451 F.2d 372, 377 (9th Cir. 1971). The certificate must recite the specific factual findings upon which the charges are based. Conclusory allegations are not sufficient. In re Williams, 509 F.2d 949; Schrismsher, 493 F.2d 842. The certificate does not meet the requirements of Rule 42(a) if it incorporates the entire trial transcript by general reference, rather than recite specific facts. In re Williams, 509 F.2d 948; United States v. Marshall, 451 F.2d 372. A judge's failure to make the required certificate does not necessarily call for reversal of the contempt conviction. A remand of the cause to permit an opportunity for the necessary certificate may be a sufficient remedy. See United States v. Mars, 551 F.2d 711, affirmed after remand, 553 F.2d 508 (6th Cir. 1977).

[cited in JM 9-39.000]