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United States v. Thoreen

653 F.2d 1332 (1981)

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United States v. Thoreen

United States Court of Appeals for the Ninth Circuit

653 F.2d 1332 (1981)

Facts

Harold Thoreen (defendant) represented a commercial fisher, William Sibbett, in a nonjury criminal trial for violating a preliminary injunction against salmon-fishing. Thoreen hoped the government agent who had cited Sibbett for contempt would be unable to identify Sibbett. Thoreen had Clark Mason, who resembled Sibbett, dress in rugged clothing and sit next to Thoreen at counsel table. Sibbett dressed in a business suit and glasses and sat in the press row. The judge excluded witnesses from the courtroom, but Mason remained at counsel table. During the trial, Thoreen gestured to Mason as though he were Sibbett, had Mason take notes on a yellow pad, conferred with Mason, and did not correct the court when the court called Mason the defendant. Two government witnesses misidentified Mason as Sibbett. Thoreen called Mason as a witness and revealed his true identity. The government reopened its case, the government agent was recalled, and Sibbett was identified and convicted. The judge found Thoreen in criminal contempt because there was no identification issue in the case; Mason remained in the courtroom despite the order excluding witnesses; the court did not approve or have prior knowledge of the substitution; and the tactic disrupted the trial, deceived the court, thwarted the court’s responsibility to administer justice, and violated a court custom. Thoreen appealed, arguing that his conduct was a good-faith tactic in aid of cross-examination and constituted zealous advocacy.

Rule of Law

Issue

Holding and Reasoning (Wright, J.)

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