There is thus no conviction for us to reinstate. The finding of willfulness in a contempt case is a finding of fact. See, e.g., United States v. Themy-Kotronakis, 140 F.3d 858, 864 (10th Cir. 1998); United States v. Rapone, 131 F.3d 188, 195 (D.C. Cir. 1997); In re Levine, 27 F.3d 594, 596 (D.C. Cir. 1994), cert. denied, 514 U.S. 1015 (1995); United States v. Metropolitan Disposal Corp., 798 F.2d 1273, 1274 (9th Cir. 1986). One can imagine a case, however rare, in which a judge's not-guilty verdict could be overturned under the Jenkins dictum. If the district court here had found willfulness but had acquitted the defendants on the explicit but erroneous ground, say, that injury to the clinic and its patients was also an element of the crime but had not been established, the dictum might well permit such a reversal.
See, e.g., In re Grand Jury Proceedings, 801 F.2d 1164, 1166-70 (9th Cir. 1986) (per curiam) (affirming contempt order for failure to comply with subpoena to produce records); United States v. Metro. Disposal Corp., 798 F.2d 1273, 1274 (9th Cir. 1986) (affirming contempt order for failure to comply with subpoena duces tecum and wilfully violating district court's order to produce documents). Specifically, the Court certifies the following facts:
In the case of Richard Panning, Plaintiff argues that it stipulated to the information contained in Mr. Panning's testimony (i.e., Defendant's tariffs) and, therefore, Plaintiff should not bear the costs associated with unnecessary testimony. SeeUnited States v. Metropolitan Disposal Corp., 622 F.Supp. 1262 (D.Or.1985), aff'd, 798 F.2d 1273 (1986) (Contemnor not liable for witness fees where contemnor had agreed to stipulate to witness' testimony and witness' trial testimony was primarily covered by the stipulation). Mr. Panning's testimony, however, was not merely a recital of North American's tariffs; nor was it predominantly a recital of North American's tariffs.