Criminal Law Blog

Time’s Up on Those Contempt Charges!

Brookens v. United States (decided April 5, 2018)

Players: Associate Judges Thompson and Easterly, and Senior Judge Ferren. Opinion by Judge Easterly. Johnny Barnes for Mr. Brookens. Trial Judge: José M. López

Facts: In 1986, appellant was charged and convicted of several counts of contempt based on his unauthorized practice of law in violation of then-existing Rule 49. At the time same that it convicted appellant of some of the charges brought against him, the Court acquitted appellant of those counts which alleged he had engaged in the unauthorized practice of law by representing others before a District agency. The Court read then-existing Rule 49 to prohibit only the unauthorized representation of others before courts, not agencies. The Court then issued an injunction prohibited appellant from (1) representing others before any court in the District, (2) holding himself out as a lawyer in the District, (3) engaging in the practice of law in the District, and (4) engaging in any other unauthorized practice of law prohibited by Rule 49.

In 1998, Rule 49 was revised to include a prohibition on the unauthorized practice of law before any District agency.

In 2011, appellant was charged with being in contempt of the 1986 injunction, stemming from his representation of others (namely, a tenant association to which he belonged) before District Agencies. Of the four charges that proceeded to trial, two charged conduct occurring in 2005. Two remaining charges alleged he had violated the 1986 injunction by violating Rule 49 and by representing others before a District agency—on at least one occasion between January 1996 and June 2008. The trial court found appellant guilty of all four counts. The Court of Appeals reversed.

Issue 1: Does D.C. Code §23-113(a)(5), which sets forth a three-year catchall statute of limitations for misdemeanor offenses apply to charges of criminal contempt?

Answer: Yes. The Court holds explicitly for the first time that criminal contempt is a crime just like any other and therefore criminal contempt charges prosecuted in Superior Court are crimes subject to the jurisdictional limitations for the District’s statute of limitations.

Furthermore, each individual contemptuous act is its own offense, and the government may not circumvent the statute of limitations by charging contempt as an on-going crime covering an extension period of time, as was done in this case. The statute of limitations begins to run from the time of the specific contemptuous conduct.

Issue 2: Was there sufficient evidence to support appellant’s convictions for conduct that was not time-barred by the statute of limitations where the 1986 injunction did not bar him from representing others in front of agencies (as opposed to courts).

Answer: No. At the time the Court issued the 1986 injunction, it explicitly held that the then-existing Rule 49 did not cover conduct before government agencies, and therefore acquitted appellant of all conduct occurring before such agencies, as opposed to in Superior Court. The Court holds now that—unless expressly worded to incorporate future changes in an existing law—an injunction must be read to reflect the law as it existed at the time of the injunction. Thus, that Rule 49 has since been amended to include a prohibition on the unauthorized proactive of law before agencies as well as courts, does not render appellant’s actions contemptuous of the 1986 injunction. CP

Read the full opinion here.