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BERMAN & DOWELL
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October 11, 2002
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CONFIDENTIAL ATTORNEY-CLIENT MAIL OPEN ONLY IN PRESENCE OF ADDRESSEE
vir.
Alphonse Mourad
125 West Street
Hyde Park, MA 02136
.
Re:
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United States v. Mourad
United States Court of Appeals No. 00-2456
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Dear Mr. Mourad:
.
The United States Supreme Court has turned down your request for review of your case. A copy of the decision is enclosed. As you know, the Supreme Court hears only a small fraction of the cases presented to it each year.
At this point, my work on your case is at an end. You have no further avenues for review. Obviously, if you have any questions, you should feel free to contact me.
Best of luck to you.






No.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2001
ALPHONSE MOURAD
Petitioner,
v.
UNITED STATES
Respondent,
Petition for a, Writ ofCertiorari To the United States Court of Appeals For the First Circuit
PETITION FOR A WRIT OF CERTIORARI
Joseph S. Herman, Esquire
BERMAN & DOWELL
220 Commercial Street
Boston, MA 02109
(617)723-9911
(617) 723-6688 (fax)
TABLE OF CONTENTS
Questions Presented ........................................................ 1.
Opinions Below ............................................................ 2.
Jurisdiction.................... i. .................,.............,...'.,.,,....... 2,
! ' "* ' * ** * ' * . I. ,l . , -(I.11!. .; ,
Constitutional Provisions and Statutes ........................................... 2.
Statement of the Case ....................................................... 2.
Reasons for Granting the Writ ................................................. 7.
I. The Appeals Court Erred In Applying The Collateral Bar Rule To This Case ..... 7.
II. The Collateral Bar Rule Is Unconstitutional ............................. 15.
III. The Order Was Not Reasonably Specific ............................... 15.
IV. The Order Was No Longer In Effect on the Day of the "Violation" ........... 16.
Conclusion .............................................................. 19.
Table of Authorities Judicial Decisions '
Federal Cases
Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977) .............................. 14.
Bush Ranch, Inc. v. El DuPont De Nemours & Co, 99 F. 3d 363, 370, (1 ^ Cir. t'996) ..'..'.. 8.
California Motor Transport C. v. Trucking Unlimited, 404 U.S. 508, 513, 98 S. Ct. 34, 25 (1907)........................................................... 10-11
Castro v. United States, 775 F.2d 399, 408 (1" Cir. 1984) ........................... 11.
Chambers v. Baltimore and Ohio Railroad, 207, U.S. 142, 148. 28 S. Ct. 34,35 (1907) .... 10.
Cok v. Family Court of Rhode Island, 985 F.2d 32, 34 (I81 Cir. 1993) .................. 11,
Fuentes v. Shevin, 407 U.S. 62, 92 S. Ct. 1983 (1872) ............................. 13.
German v. Vance, 868 F.2d 9, 11 (1" Cir. 1989) .................................. 13.
Goldbergv. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970) ...'. ......................... 13.
Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975) ................................ 13.
In re Criminal Contempt Proceedings Against Craw ford, 133 F. Supp. 2d 249 (W.D.N.Y. 2001) .......................................................... 9.
In re Establishment Inspection of Hem Iron Works, Inc., 881 F. 2d 722 (9th Cir.1989) ................................................... 9., 14., 15.,17.
In re Providence Journal, 820 F.2d 1342, 1346 (1st Cir. 1986) modified on reh 'g en bane, 820 F. 2d 1354 (1" Cir. 1987) ...................... 6., 9., 14.
InreRogerNovak, 932F.2d 1397 (11th Cir. 1991) .............................. 9., 14.
In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 1075 (1970) ............................ 8.
Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 902 (1976) ....................... 13.
Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir. 1980) .......................... 11, 12.
Simmons v. Dickhaut, 904, F.2d 182, 183 (1st Cir. 1986) ............................ 10.
Siresv. Gabriel, 748 F.2d 49, 51 (1st Cir. 1984) .................................. 11.
United States v. Bernandine, 237 F.3d 1279, 1282 (11th Cir. 2001) ..................... 8.
United States y. Burstyn, 838 F.2d 1322, 1325, (11th Cir. 1989) ,.......,...., .^. ........ 8.
United States v. Cutler, 58, F.3d 825 (2d. Cir. 1995) ................................ 9.
United States v. Michaud, 928, F. 2d 13, 15 (1st Cir. 1991) ................ '. ........ 7., 8.
United States v. Mine Workers V. Bagwell, 512 U.S. 821, 114 S. Ct. 2552, 2556 (1994) ..... 8.
United States v. Mourad, 289 F. 3d 174 (1" Cir. 2002) ......................... 2., 6., 7.
United States v. Nightingale, 703 F.2d 17, 19 (1" Cir. 1983) .......................... 8.
United States v. Perry, 116 F.3d 952 (1st Cir. 1997) ................................ 13.
United States v. Terry, 802 F. Supp. 1094 (S.D. N.Y. 1992) ........................ 9-10
United States v. Trudell, 563, F.2d 889. 891 (8th Cir. 1997) .......................... 17.
United States v. Walker, 1994 U.S. Dist. LEXIS 19701 (W.D.N.Y., December 22, 1994) .... 9.
Walker v. City of Birmingham, 388 U.S. 307, 320 (1967) ....................... 6., 8, 14.
Wolffv. McDonnell, 418 U.S. 539, 579, 28, S. Ct. 2963, 2968 (1974) .................. 10
Statutes 18 U.S.C. 401(1) ..................................................... 13.,17.
18 U.S.C. 401 (3) ................................................ 5., 7., 13., 17
28 U.S.C. 1254(1) ...................................
ISSUES PRESENTED
1. The circumstances under which the collateral bar rule precludes a challenge to a court order in a proceeding for criminal contempt based on an alleged violation of that order.
2. Whether the collateral bar rule is constitutional.
3. Whether a court order barring a citizen from a United States courthouse in perpetuity is reasonably specific.
4. Whether a federal bankruptcy court order barring a litigant from the courthouse remains in effect after the litigation has ended.
No._____
In the Supreme Court of the United States October Term, 2001
Alphonse Mourad Petitioner
v.
United States, Respondent,
Petition for a Writ ofCertiorari To The United States Court of Appeals For the First Circuit
The Petitioner, Alphonse Mourad, respectfully prays for issuance of a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit, entered on May 14, 2002, affirming the judgment and sentence of the United States District Court for the District ofMassachusetts.
Questions Presented
1. The circumstances under which the collateral bar rule precludes a challenge to a court order in a proceeding for criminal contempt based on an alleged violation of that order.
2. Whether the collateral bar rule is constitutional.
3. Whether a court order barring a citizen from a United States couithouse in
4. Whether a federal bankruptcy court order barring a litigant from the courthouse remains in effect after the litigation has ended.
Opinions Below
t '
The Per Curiam opinion of the United States Court of Appeals for the First Circuit in United States v. Mourad is reproduced in Appendix "A" and is reported, at 289 F.3d 174 (r'lCir. 2002).
Jurisdiction
The judgment of the United States Court of Appeals for the First Circuit, affirming the Petitioner's conviction and sentence, entered in the Appeals Court docket on May 14, 2002. This petition is filed within ninety (90) days of that date. The Petitioner invokes this Court's jurisdiction under 28 U.S.C. 1254(1).
Constitutional Provisions and Statutes
i
Mourad challenges his conviction on charges of criminal contempt, pursuant to 18 U.S.C. 401(3), and the refusal by the district court and court of appeals to entertain his challenge to the subject court order under the so-called collateral bar rule. He also challenges the constitutionality and effectiveness of the order on the day of the alleged violation.
Section 401(3) of Title 18 of the United States Code provides as follows: "A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as -- ... (3) [disobedience or resistance to its lawful writ, process, order, rule, decree, or command."
Statement of the Case
The case arises out of a bankruptcy proceeding in the United States Bankruptcy Court for
the District of Massachusetts, Case No. 96-10123-CJK, In re V&M Management. Inc. Petitioner Alphonse Mourad ("Mourad") had been a principal in V&M Management and played an active role in the bankruptcy proceeding before Judge Carol J. Kenner.
On November 16, 1998, Judge Kenner entered an Order, providing, inter alia. as follows:
i . Alphonse Mourad, the Debtor's sole shareholder, director and .'./i , , .n officer, has twice - on Thursday November 5, 1998 and Friday, November 13, 1998 - appeared at the premises of this Court in attempts to disrupt Court business by vowing not to leave the premises of the Bankruptcy Court and courtrooms.
Therefore, it is hereby ORDERED that, except for the hearing on this case scheduled for November 30, 1998, Alphonse Mourad is barred from entering the Eleventh Floor of the O'Neill Building, 10 Causeway Street, Boston, Massachusetts, until further order of this Court.
(A copy of the Order was marked as Exhibit 1 at trial and is appended to this Petition as Appendix "B")
No hearing was held on the Order before it went into effect.
This Order was docketed by Judge Kenner's clerk and sent to the parties on the "cc" list on page 2, including Mourad. The Eleventh Floor of the O'Neill Building houses the bankruptcy courtrooms and the clerk's office. Deputy Marshal Stephen Donaher testified that he observed another deputy serve in hand Mourad with a copy of the order on that day.
Deputy Donaher saw Mourad enter the Eleventh floor of the O'Neill Building on May 12, 1999. He saw Mourad pass through the metal detector and pick up a bag off the x-ray machine. Donaher testified that he heard Mourad say to court security officers that, "[h]e was here to be arrested, to violate the court order, and he had asked where the marshal was." Donaher admitted that, when he saw Mourad, in the "back of my head, I realized that he wanted to be arrested,..."
After taking Mourad into a conference room, Donaher arrested him. Another court security officer, James Sartori, testified that he heard Mourad remark on May 12, 1999 that he desired to be arrested.
On occasions prior to May 12, 1999, Mourad appeared on the Eleventh floor of the building with papers to file, waited outside the security area, and court security officers assisted him by taking his papers to the clerk's office for filing.
Mourad testified that, prior to appearing in the bankruptcy court on May 12, 1999 (and on that day as well), he was confused about whether Judge Kenner's order remained in effect. His
intention on May 12th was solely to go to the clerk's office to determine whether a matter that he
' i had originally filed in Suffolk County Superior Court had been docketed at the Bankruptcy
Court. In fact, the night before May 12, 1999, Mourad called the Federal Bureau of Investigation
in Washington, D.C. to let the government know of his intentions and that he did not want to be
i arrested when he appeared in court the next day.
When he arrived on the Eleventh floor of the O'Neill Building on May 12, 1999, Mourad was carrying a copy of his state court complaint. Deputy Marshal Donaher was waiting for Mourad at the metal detector area. Mourad denied telling Donaher or anyone in court that day that he wanted to be arrested. Examined directly by Judge Lindsay, Mourad emphatically denied wanting to be arrested on May 12, 1999. He did not want to violate the order that day and, in fact, was confused about whether it even was still in force and effect. Mourad did not intend to go to prison that day. He thought that he could "go to the clerk's office" without violating the order. He simply wanted to check the status of his case. Although he had tried to ascertain the status by telephone, this effort was unavailing, and he faced an impending statute of limitations
deadline on a state claim that had been removed to the bankruptcy court.
On cross examination, Mourad admitted that he had not appealed nor sought reconsideration of the November 16, 1998 order.
Mourad moved for a judgment of acquittal, arguing that Judge Kenner's order was both .unconstitutional and vague, and that he was not precluded by the so-called "collateral bar rule" ;
from challenging the lawfulness of the order. Mourad argued that the order was facially invalid because it purported to bar him permanently from the Eleventh floor of the O'Neill Building, and because it did not, on its face, provide for judicial review. He also argued that the order was ambiguous and that it no longer was in effect on the day of the alleged violation.
The court denied Mourad's Rule 29 motion, finding that the evidence in the government's case supported a finding that the order still was in effect on May 12, 1999 and that Mourad knew of the order and violated it on May 12, 1999. Judge Lindsay acknowledged questions concerning whether Judge Kenner should have granted Mourad a hearing prior to issuing the order and whether the order deprived Mourad of his rights under the First Amendment to the United States Constitution. Despite these findings, the trial judge precluded Mourad from challenging the order under the collateral bar rule, holding that the order was not "patently unconstitutional."
At the conclusion of the trial, the district court judge found the defendant guilty of violating 18 U.S.C. 401(3). The court ruled that, despite the defendant's arguments concerning the lawfulness of the order, the collateral bar rule precluded any such challenge given his apparent failure to contest the order in the bankruptcy court and the order's lack of patent unconstitutionality. Viewing the evidence as a whole. Judge Lindsay found that Mourad knew the order remained in effect on May 12, 1999, although he also found that, "I don't have a doubt,
actually, that Mr. Mourad was confused as to on May 12,1999." Judge Lindsay also found that Mourad willfully violated the order. In reaching this conclusion, Judge Lindsay relied on the transcript of the defendant's initial appearance before Magistrate Judge Cohen. At the hearing, Mourad had stated that, '"My whole purpose today is to protest Judge Kenner's action, how she has taken away -' he's cut off." He also had stated: '"When I came here, this mornjing I was , prepared to go to be in prison, to go on a hunger strike, and I did fax my press releases."' Based largely on these statements. Judge Lindsay found that Mourad had not been confused about the status of the order on May 12, 1999 and had, in fact, wanted to be arrested. The statement about
coming "here" prepared to be arrested Judge Lindsay found referred to the bankruptcy court at
i
the O'Neill Building rather than the United States Courthouse, the location of his initial appearance, where the statement was made.
Sentencing was held on October 12, 2000. The district judge fined Mourad $1,000. At
i the dispositional hearing, Mourad presented evidence of a serious heart condition, including
doctors' reports. Mourad takes numerous medications for high blood pressure, as well as sleep medications. Judge Lindsay agreed that the medical reports showed an abnormal or high "PSA."
On May 14, 2002, the United States Court of Appeals for the First Circuit affirmed the Petitioner's conviction. The court held that the collateral bar rule precluded any challenges to the subject order, invoking this Court's decision in Walker v. City of Birmingham. 388 U.S. 307, 320 (1967), and its own decision in In re Providence Journal. 820 F.2d 1342, 1346 (1" Cir. 1986), modified on reh 'g en bane, 820 F.2d 1354 (1" Cir. 1987). The court of appeals held that the subject order was not "transparently invalid" and did not, therefore, fall outside the scope of the collateral bar rule. United States v. Mourad. 289 F.3d at 177-179. The court also held, after
reviewing the trial judge's ruling de novo, that the subject order remained in effect on the day in question, even though the bankruptcy court had closed the bankruptcy case months earlier. Id. at 179-180. Lastly, the court of appeals found sufficient evidence to support the conviction, including evidence that the Petitioner's violation of the order had been "willful." Id. at 180.
.Reasons for Granting the Writ i , ,, , I. The Appeals Court Erred In Applying The Collateral Bar Rule To This Case
i t
In affirming defendant-appellant Mourad's conviction for criminal contempt, the United States Court of Appeals for the First Circuit held that Mourad could not challenge the validity or constitutionality of the subject order, because the collateral bar rule severely limits the opportunity to challenge an order once it has been violated. United States v. Mourad. 289 F.3d 174, 177-179 (1st Cir. 2002). The application of the collateral bar rule to this case was erroneous.
Rule 42 of the Federal Rules of Criminal Procedure empowers the courts to punish those persons who disobey their authority. By statute, codified at 18 U.S.C. 401, the Congress has provided criminal penalties for willful violations of court orders. Section 401(3) provides that, "A court of the United States shall have the power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as - ... (3) Disobedience or resistance to its lawful writ, process, order, rule, decree or command."
To convict a defendant for criminal contempt under 18 U.S. C. 401(3), the government must prove three elements: (1) a lawful order of reasonable specificity; (2) violation of the order;
and (3) willfulness on the part of the accused. United States v. Michaud. 928 F.2d 13, 15 (1st Cir. 1991). Criminal contempt is considered a "crime in the ordinary sense" and, as such, the defendant must be afforded the constitutional protections required in all criminal cases. United
Mine Workers v. Bagwell. 512 U.S. 821, 114 S.Ct. 2552, 2556 (1994). Among other protections, the defendant is entitled to insist that the government prove each of the three elements of the offense beyond a reasonable doubt. United States' v. Michaud. 928 F.2d at 15;
United States v. Nightingale. 703 F.2d 17, 19 (1st Cir. 1983); In re Winship. 397 U.S. 358, 90 S.Ct. 1068. 1075 (1970^: United States v.Burstvn. 878 F.2d 1322. 1325 01th Cir, 1989Y ,
Because the first element of an offense under Section 401(3) is a showing that the subject order was "lawful" and of "reasonable specificity," many defendants, Mourad included, defend the charges by challenging the validity of the order.1 Obviously, the government bears the burden of proving each element beyond a reasonable doubt. In re Winship. 397 U.S. 358, 90 S.Ct. 1069, 1075 (1970). As part of this burden, it is entirely appropriate for the trial court to permit the defendant to challenge the order.
The collateral bar rule represents a serious impediment to a defense to a charge of criminal
contempt. Under the rule, a defendant may not violate a court order and then, in a subsequent
criminal contempt case, challenge the validity of the order. Walker v City of Birmingham. 388 U.S. 307, 87 S.Ct. 1824, 1829-1830 (1967). The rule precludes raising challenges to an order in a collateral, criminal proceeding. Id.
In essence, and if taken to its extreme (as in this case), the rule effectively gives the government a "pass" on the first element of the charge. Absent a meaningful way of challenging the order, there is no way for the defendant to assert that the government has not met its burden
lAn order is "reasonably specific" "only if it is 'clear, definite and unambiguous in requiring the action in question.'" United States v. Bemandine. 237 F.3d 1279, 1282 (11th Cir. 2001) (quotins Bush Ranch. Inc. v. E.I. DuPont De Nemours & Co.. 99 F.3d 363, 370 (11th Cir.
on the first element of the offense.
For this reason, the First Circuit, in In the Matter of the Providence Journal. 820 F.2d 1342, 1346 (1st Cir. 1986) (hereinafter, "Providence Journal I"), modified on rehearing en bane, 820 F.2d 1354 (I81 Cir. 1987) (hereinafter, "Providence Journal ID. recognized a safety valve 'that allows'challenges where the order is "transparently invalid." .Providence Journal L. 820 F.2d;,, , ,;
at 1346-1347. The court further noted that, if a party could not collaterally challenge a transparently invalid order, courts would be able to exercise powers not within its authority, "a cpncept inconsistent with the notion that the judiciary may exercise only those powers entrusted to it by law." Id. at 1347. "Blind obedience to all court orders is not required." Id. at fn. 28, Although a court order demands respect, "so does the right of the citizen to be free of clearly improper exercises of judicial authority." Providence Journal I. 820 F.3d at 1347. The exception makes sense because, when a court issues a transparently invalid order, "the court is acting so far in excess of its authority that it has no right to expect compliance and no interest is protected by requiring compliance." Id. at 1347. Courts must be vigilant to make sure that the contempt power is not abused, because, "[t]hat the contempt power is subject to abuse is well understood." 3 Wright & Miller Fed. Prac. & Proc. Crim. 2d 702 (1982).
Most circuit courts of appeal that have addressed the issue have agreed with the First Circuit as to the "transparent invalidity" exception to the collateral bar rule. See United States v, Cutler. 58 F.3d 825 (2d Cir. 1995); In re Roger Novak. 932 F.2d 1397 (11th Cir. 1991); In re Establishment Inspection of Her Iron Works. Inc.. 881 F.2d 722 (9th Cir. 1989); In re Criminal Contempt Proceedings Against Crawford. 133 F.Supp.2d 249 (W.D.N.Y. 2001); United States v. Walker, 1994 U.S. Dist. LEXIS 19701 (W.D.N.Y., December 22. 1994); United States v. Terrv.
802 F.Supp. 1094 (S.D.N.Y. 1992).
The order in this case was transparently invalid for two reasons: (1) it purported to bar Mourad from the bankruptcy court with no termination date and was therefore not reasonably specific; and (2) it entered without notice and hearing.
As to the first point, the operative part of the order provided as follows: "It is hereby ORDERED that, except only for the hearing in this case scheduled for November 30, 1998, Alphonse Mourad is barred from entering the Eleventh Floor of the O'Neill Building, 10 Causeway Street, Boston, Massachusetts, until farther order of this Court." (emphasis added).
With no termination date, the order apparently was effective in perpetuity. To Mourad, reading the plain meaning of Judge Kenner's words, there was no date upon which he could safely re-enter the bankruptcy court. And, it should be kept in mind that the Eleventh Floor is the nucleus of the court: the clerk's office, the Trustees' offices and the courtrooms. The essential business of the bankruptcy court is conducted there. By barring Mourad permanently from those rooms, Judge Kenner effectively cut him off from the most important part of the court. Whether Judge Kenner subjectively believed that she could or would modify the order was irrelevant to a pro se litigant such as Mourad.
Barring Mourad from the Eleventh Floor interfered with his rights under the United States Constitution to address the court. The right of access to courts is a discrete, constitutional right derived from various sources, including the privileges and immunities clause and the First Amendment. See Simmons v. Dickhaut. 804 F.2d 182, 183 (1" Cir. 1986) (citing Wolffv. McDOnnell. 418 U.S. 539, 579, 28 S.Ct. 2963, 2986 (1974); Chambers v. Baltimore and Ohio Railroad. 207 U.S. 142, 148, 28 S.Ct. 34, 35 (1907); and California Motor Transport Co. v.
Trucking Unlimited. 404 U.S. 508, 513. 98 S.Ct. 609, 613 (1972)). It is an important right in the arsenal of personal liberties. A litigant such as Mourad, whose entire livelihood and the fruits of years of hard work are at stake, is entitled to meaningful participation in the legal process. In this case, participation required that he be given physical access to the court, including the clerk's *office. , , , , , ^ , , ^ ^ , , ,, , ^ - ,',,,^ ^ ^ , , ,
Although federal courts "possess discretionary powers to regulate the conduct of abusive litigants," Cok v. Family Court of Rhode Island. 985 F.2d 32, 34 (1" Cir. 1993) and may, "in extreme circumstances involving groundless encroachment upon the limited time and resources of the court and other parties," issue an injunction barring a party from filing and processing frivolous and vexatious motions, Castro v. Untied States. 775 F.2d 399, 408 (1" Cir. 1984), the bar must be "narrowly tailored." Sires v. Gabriel. 748 F.2d 49, 51 (1st Cir. 1984). Otherwise, the order would "impermissibly infringe upon a litigator's right of access to the courts." United States v. Castro. 775 F.2d at 410. An injunction against future litigation that is couched in overly broad terms could impermissibly infringe upon a litigant's right of access to the courts. Cok. supra., 985 F.2d at 34. Such an injunction must "remain very much the exception to the general rule of free access to the courts." Pavilonis v. King. 626 F.2d 1075, 1079 (1st Cir. 1980), cert. denied 449 U.S. 829 (1980).2
Because it purported to apply indefinitely, the order in this case was transparently
^he court of appeals held that Judge Kenner did not deny Mourad access to the bankruptcy court, since he still could file pleadings. The distinction is incorrect. As this Court is well aware, actual physical access to a court is a vital right, over and above filing pleadings, as demonstrated by this case. The bankruptcy proceeding involving Mourad's former company lasted several years and involved hundreds of court filings and many corollary proceedings. To Mourad, who was pro se for most of the case, he needed to be able to review the docket in the
unconstitutional. Judge Kenner's order was an extreme reaction to Mourad's pro se handling of the case. Judge Kenner's only factual findings precedent to entry of the order were recited in its text: that Mourad apparently had twice appeared at the court and'"vow[ed] not to leave the premises of the Bankruptcy Court and courtrooms." Obviously, despite his "vow," he had voluntarily removed himself from the court. There was no finding that Mourad had actually , disrupted a hearing or interfered in any way with the administration of justice. There were no findings about his actual statements, the form of his statements, where he made them, his tone of voice, or any other action that would support the implicit finding of the bankruptcy judge that
Mourad had misbehaved in the court or "so near thereto as to obstruct the administration of
i
justice." See Wright & Miller at Sec. 702, supra. For all that is known as part of the record below, Mourad had vigorously asserted a legal position in the court, and the judge had found the
assertion of his rights annoying. However, as discussed above and in the cases, the contempt
i power is dangerously strong and should be used with trepidation. Barring permanently a pro se
litigant from a court - particularly based on the sketchy record in this case - is an extreme use of judicial power that could border on abuse. Under such circumstances, Mourad should not have been forced to litigate the validity of the order through the courts. The collateral bar rule did not apply here. He had the right to challenge the validity of the order in defense of the criminal proceeding.
The second reason that the collateral bar rule should not apply here is that Judge Kenner did not provide Mourad notice and a hearing prior to the order going into effect. The absence of procedural due process renders the order unconstitutional. As discussed above, the factual findings leading to the order were extremely sketchy. Absent from the findings were any facts
that would support entry of the order on an emergency basis without notice or hearing. See. e.g.. Fed.R.Civ.P. 65(b) (ex parte temporary restraining order may last only ten (10) days). This is not a case, for example, where Mourad disrupted a hearing by refusing to comply with decorum or respond to inquiries or commandments of the court. See, e.g.. United States v. Perry. 116 F. 3d 952 (1st Cir, 1997) (defendant in racketeering trial urinated on carpet in opep court, in plain view of judge). Nor did he threaten the judge, court personnel or other litigants or lawyers. The case was prosecuted under 18 U.S.C. 401(3), dealing with alleged disobedience of court orders.
Disruptions of court proceedings, which arguably present a more immediate situation, are
i
prosecuted under 18 U.S.C. 401(1), which prohibits, "[mjisbehavior of any person in [the court's] presence or so near thereto as to obstruct the administration of justice." Since the facts giving rise to this case were not immediate and presented no emergency, there was no reason to deny Mourad the notice and a hearing.
The due process clause requires at a minimum that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity to be heard appropriate to the nature of the case. Goss v. Lopez. 419 U.S. 565, 95 S.Ct. 729 (1975); Fuentes v. Shevin. 407 U.S. 67, 92 S.Ct. 1983 (1972) (replevin of personal property violated procedural due process where statute provided no opportunity for notice and hearing). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Matthews v. Eldridee. 424 U.S. 319, 96 S.Ct. 893, 902 (1976); Goldbere v. Kellv. 397 U.S. 254, 90 S.Ct. 1011 (1970). And, the court of appeals held in an earlier case: "It can be a deprivation of life, liberty or property without due process of law, in violation of the Fourteenth Amendment, for state officials to deny a person access to the courts." Germany v. Vance. 868 F.2d 9, 11 (1st Cir.
1989) (citing Bounds v. Smith. 430 U.S. 817, 97 S.Ct. 1491 (1977)).
In many ways, Mourad presents a more compelling exception to the collateral bar rule than the newspaper in Providence Journal. Not a lawyer, he represented himself. Unlike a big city daily newspaper, he could not afford to pay an army of seasoned litigators to assert his rights. He was simply a citizen who was admonished by a federal judge that he could never return to the physical premises of the bankruptcy court. Under these circumstances, it would be grossly unfair - and a perverted extension of the collateral bar rule - to preclude Mourad from raising the unconstitutionality of the order in his defense in a criminal case, where he faced the prospect of loss of liberty, probation or a fine.
This case presents an opportunity for this Court to clarify the standards governing the "transparent invalidity" exception to the collateral bar rule. In Walker v. City of Birmingham. this Court suggested the exception, which the First Circuit and other courts of appeals (namely, the Ninth and Eleventh Circuits in Novak and Hem Iron Works, supra.) have adopted. The problem in implementation is that those courts have set such a high standard that the exception has become meaningless. In fact, research disclosed no reported decision in which a litigant was allowed to challenge a court order as transparently invalid. (See cases cited at pages 9-10 of this brief, supra).
One solution would be for this Court to set forth a rule that an order is "transparently invalid" if it enters without procedural due process (i.e. notice and hearing) or, on its face, is invalid. As applied to this case, the order clearly fits this requirement because the bankruptcy judge provided no hearing and purported to extend her order into the indefinite future.
n. The Collateral Bar Rule Is Unconstitutional
In his brief to the First Circuit, Mourad argued that the collateral bar rule is unconstitutional, at least as applied to the facts of this case. In affirming the conviction, the court did not address this argument. It should have addressed the argument, and if should have found
'i *i1 11. ! > ,'... l,, ,i , _ ., ',,,,, ,;,
that the rule violates the Constitution.
As discussed above, the rule gives the government a "bye" on the first element of a section 401(3) prosecution. Because of the rule, the defendant has almost no viable means of challenging the validity and/or specificity of the subject court order. It shifts the burden of proof to the accused - unconstitutionally - to prove, not only that the order was invalid, but that it was transparently invalid. As even a cursory review of the case law will show, this requirement is almost impossible for any defendant to surmount. If the defendant has not followed the proper channels in the underlying proceeding, he has lost forever an important arrow in his defensive quiver. Particularly here, where Mourad did not have the benefit of counsel, the result is patently unfair.
There is no just nor rational reason for a court to preclude a defendant from raising the
* i
defense ofunconstitutionality in a criminal proceeding. Obviously, the more prudent strategic approach would be to seek immediate review of the order. However, a defendant who chooses not to avail himself of immediate review should not have the argument foreclosed later.
ffl. The Order Was Not Reasonably Specific
For the reasons set forth in Sections I and II, supra., the bankruptcy court's order was invalid and unconstitutional. First, it was not reasonably specific as to time and space. Second,
it was a disproportionate response based on an insufficient record. Judge Kenner made only the most general findings of fact to support the order, which purported to bar a litigant permanently from the courtrooms and clerk's office of the bankruptcy court. Third, the order deprived Mourad of his right of access to the courts without providing him fundamental due process. And, as set forth in Section III, infra.. the order was no longer in effect, on the day of the alleged violation.
Because the order was invalid and unconstitutional, the district court erred in finding Mourad guilty for violating it.
IV. The Order Was No Longer In Effect On The Day Of The "Violation"
Judge Kenner's order barring Mourad from the Eleventh Floor of the O'Neill Building was entered on November 16, 1998. On December 23, 1998, Judge Kenner allowed the Amended Motion for Entry of Final Decree Closing Bankruptcy Case. (Exhibit 11 at trial; A. 25). In doing so, Judge Kenner "closed" the bankruptcy case involving V&M Management except for two matters specifically excepted. She finally resolved these matters (dealing mostly with Mouard's claims that he originally had filed in state court) on November 10, 1999.
As of May 12, 1999, when Mourad appeared on the Eleventh Floor of the O'Neill Building, Judge Kenner had closed the V&M Bankruptcy case. At that point, other than the matters she specifically and explicitly excepted from her December 23, 1998 order, she had relinquished jurisdiction over the case, including her November 16, 1998 order barring Mourad from the Eleventh Floor. Nowhere in the record did Judge Kenner indicate an intention that her November 16, 1998 order survive the closing of the case. In fact, the language of the December 23, 1998 order suggests the opposite, since it was not one of the matters specifically excepted
from the closing of the case.
With no underlying case, the order was no longer effective. A somewhat analogous situation was discussed (albeit in dicta) in In re Establishment Inspection of Hem Iron Works. Inc.. 881 F.2d 722, 726-727 (9th Cir. 1989). There, the court noted that an order may be violated (without running afoul of the collateral bar rule) is it rested upon a defective jurisdictional base. "If a court order issues without personal or subject matter jurisdiction, the decree may be violated without incurring the penalty of criminal contempt. In such a case, the original order is deemed a nullity." Id. Although, in this case. the bankruptcy court had personal and subject matter jurisdiction to issue the November 16, 1998 order, it lost that jurisdiction on December 23, 1998.
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In rejecting this argument at trial (when presented in the context ofMourad's Rule 29 motion), the district court judge, respectfully, focused on the wrong question. He rejected the argument on the assumption that a court always has the authority to regulate conduct in its courtrooms. The judge was correct, but he asked the wrong question. True, a trial judge need not have "subject matter jurisdiction" over a matter or litigant to regulate contemptuous conduct. The court has inherent authority to do so. See. e.g.. United States v. Trudell. 563 F.2d 889, 891 (8th Cir. 1977). Thus, the court may hold spectators in contempt for contumacious conduct. Id. This power is fundamental to the administration of justice and is addressed by 18 U.S.C. 401(1), a different subsection of the statute than used against Mourad in this case, 18 U.S.C. 401(3). Subsection (1) deals with overt and immediate misconduct in the courtroom or the immediate vicinity. Subsection (3), the provision relevant here, deals with willful disobedience of lawful court orders. Afortiori, there can be no violation if the order is no longer in effect. If a litigant formerly subject to a now-expired court order appears in court and becomes disruptive,
the proper statute for prosecution is subsection (1), not subsection (3). Obviously, there -was no evidence that Mourad was disruptive or in any way violated Section 401(1). The bankiuptcy court had no "inherent" authority to have him arrested for disrupting court proceedings. In fact, the government's own evidence showed that Mourad behaved decorously on May 12, 1999, the *only issue being whether he was allowed on the Eleventh FliQor. ,, ' , ,.,i
Conclusion
For all of the foregoing reasons, the petitioner respectfully requests that the Court accept his petition for a writ of certiorari and reverse his conviction.
Respectfully submitted, Alphonse Mourad, By his attorney,

seph S. Berman,'Esquire ' Berman & Dowell 220 Commercial Street Boston, MA 02109 617-723-9911 Counsel of Record for the Petitioner
Dated: August 9. 2002




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