What is the current standard of review under Rule 42(a) of the summary contempt process?

I object to both the majority's characterization of the standard of review as abuse of discretion and to its actual review under that standard. As I have stated above, a threat of further disruption of the proceedings is, as a matter of law, a prerequisite to the use of the summary contempt process. The trial court must make a finding of fact that such a threat of further disruption exists. This finding of fact should be reviewed under the "clearly erroneous" standard by which similar findings are ordinarily reviewed by this court, United States v. Hart, 546 F.2d 798 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 571. The clearly erroneous standard gives due consideration for the opportunity of the trial judge to observe and assess the situation in its courtroom to observe nuances which are, perhaps, not fully revealed to an appellate court by the cold language of the transcript. In short, a finding of a threat of further disruption of the proceedings is, in my view, a required prerequisite to the use of the summary contempt process and not merely a factor to be considered in the trial court's exercise of discretion. Accordingly, review on the basis of "the abuse of discretion" standard is inappropriate.

IV. ADEQUACY OF THE RULE 42(a) CERTIFICATE

Rule 42(a) requires that the district judge issue a certificate reciting the facts constituting

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