United States v. Thoreen

653 F.2d 1332, cert. denied 455 U.S. 938 (9th Cir. 1981)

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Nature of the Case

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Facts

Thoreen (D) had practiced law for five years and was representing Sibbett, a commercial fisher during a non-jury trial before Judge Tanner for criminal contempt for three violations of a preliminary injunction against salmon fishing. D hoped that the government agent who cited Sibbett could not identify him and so he placed next to him at counsel's table, Clark Mason, who resembled Sibbett. D even had Mason dress upon in outdoor clothing. Sibbett wore a business suit, large round glasses and sat behind the rail in a row normally reserved for the press. D neither asked for the court's permission for no notified it or government counsel of the substitution. On D's motion at the start of trial, the court ordered all witnesses excluded from the courtroom and Mason remained at the table. Throughout the trial, D made and allowed to go uncorrected numerous misrepresentations. D did not correct the court when it referred to Mason as the defendant and caused the record to show identification of Mason as Sibbett. Two government witnesses misidentified Mason as Sibbett. Following the government's case, D called Mason as a witness and disclosed the substitution. The court then called a recess, and when the trial resumed, the government reopened and recalled the government agent who then identified Sibbett and who was then convicted on three counts. D was held in criminal contempt. The judge held that D's conduct violated 1-2(A)(4), 7-102(A)(6) and 7-106(C)(5). D claimed his conduct was a good faith tactic and fell within the protected realm of zealous advocacy.