United States v. Chinyere Alex Ogoke , 860 F.3d 924 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 16-1297
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHINYERE ALEX OGOKE,
Defendant.
APPEAL OF: MICHAEL I. LEONARD, Attorney
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 00105-2 — Ronald A. Guzmán, Judge.
ARGUED MARCH 27, 2017 — DECIDED JUNE 22, 2017
Before BAUER and EASTERBROOK, Circuit Judges, and
DEGUILIO,* District Judge.
*
Of the United States District Court for the Northern District of Indiana,
sitting by designation.
2 No. 16-1297
BAUER, Circuit Judge. Attorney Michael Leonard was
convicted of contempt under 18 U.S.C. §§ 401(1) and (3) after
he made a closing argument, in violation of the district court’s
written order, regarding a witness who did not testify at trial.
He appeals his conviction on both substantive and procedural
grounds. We affirm.
I. BACKGROUND
On February 26, 2013, Leonard was appointed under the
Criminal Justice Act to defend Chinyere Ogoke, who had been
charged with two counts of wire fraud. On May 6, 2015,
Ogoke’s codefendant Matthew Okusanya entered into a
cooperation plea agreement with the government. Ogoke
proceeded to trial on July 13, 2015, represented by Leonard and
pro bono co–counsel, Robert Robertson.
On May 4, 2015, the government filed a motion in limine
seeking to prohibit the defense from introducing any evidence
or making any argument related to potential witnesses not
called to testify at trial. On May 13, 2015, Judge Ronald
Guzmán entered an order stating that “unless there is a
showing that the missing witness is peculiarly within the
government’s control, either physically or in a pragmatic sense,
Defendant is precluded from commenting on the government’s
failure to call any witness.” The order further stated that if
such a showing were made, counsel must petition the court
before making any comment or argument regarding the
missing witness.
It was the government’s theory at trial that Ogoke and
Okusanya were coconspirators in a fraud scheme. Okusanya
appeared on the government’s witness list, but the government
No. 16-1297 3
decided not to call him during trial. During his closing argu-
ment, Leonard said the following:
Now, according to the government, Mr. Oku-
sanya was intimately involved in the scam,
right? Matthew Okusanya was intimately in-
volved in the scam. He did all sorts of things. …
[B]ut ask yourselves about the testimony you
heard from here in the case, which is your
evidence. Matthew Okusanya didn’t say one
word about Alex Ogoke. Wouldn’t you think if
Matthew Okusanya was a grand schemer with
Alex Ogoke that he would have some evidence,
some? … [H]e’s the guy. Do you remember?
He’s working in cahoots, according to the gov-
ernment, with Alex Ogoke. Not one word from
Matthew Okusanya during the trial about Alex
Ogoke. That’s strange. Now, the government
could get back up and say: Mr. Leonard could
call Mr. Okusanya as a witness. Remember the
instruction. We don’t have to raise a finger. They
have to prove Alex Ogoke guilty beyond a
reasonable doubt. We don’t have to call wit-
nesses to say they won’t say something. If the
government had something from Okusanya to
support the idea that this guy did it, you would
have heard from the grand schemer, Mr. Oku-
sanya.
At this point, the government objected; Judge Guzmán
sustained the objection and struck that portion of the argu-
4 No. 16-1297
ment. After closing arguments, Judge Guzmán adjourned the
trial for the weekend.
The following Monday, before the jury returned a verdict,
Judge Guzmán issued an order to show cause as to why
Leonard should not be held in contempt for violating the
court’s ruling on missing witness arguments. The same day,
the jury found Ogoke not guilty on all counts.
The government sent a letter to the court seeking to recuse
itself from the contempt proceeding “because this office has
other pending matters with Mr. Leonard and the contempt
proceeding arises in a trial that our office handled with
Mr. Leonard that resulted in an acquittal.” Based on those
conflicts, the government asked that the court appoint another
attorney to prosecute the contempt charge.
On August 26, 2016, Judge Guzmán held a hearing on the
order to show cause. Leonard was represented by counsel,
but no prosecutor was appointed. When the hearing began,
Judge Guzmán asked if Leonard had any questions about the
charges; his counsel responded that he did not. Judge Guzmán
then asked how Leonard wished to proceed. Leonard’s counsel
explained that he would like to make a brief opening remark
and then call Leonard and Robertson to testify. Judge Guzmán
then took judicial notice of the entire record of proceedings of
the case, and Leonard’s counsel began presenting his defense.
Leonard testified that, after initially reviewing the order on
missing witnesses when it was issued, he failed to review it
again during the trial or prior to his closing argument. He
stated that, during his closing, he had not realized he violated
the ruling, but later acknowledged that he had made a “huge
No. 16-1297 5
mistake.” He testified that the mistake was unintentional and
that he did not willfully violate the order. Robertson testified
that the issue of the missing witness ruling did not come up
while he and Leonard were preparing for closing arguments.
He stated that if he had realized the argument regarding
Okusanya would have violated the court’s ruling, he would
not have allowed his trial partner to make it. Leonard’s counsel
then gave a brief summary of the testimony and Leonard’s
position, and the court adjourned the hearing.
On September 17, 2015, Judge Guzmán issued a written
order holding Leonard in contempt and ordering him to pay a
$300 fine. He noted that Leonard was represented by counsel
at the hearing, “who was afforded an opportunity to present
evidence and argument in any form or manner he wished.”
Judge Guzmán found incredible Leonard’s argument that he
forgot about the order and that his violation was unintentional.
That finding was based on Leonard’s extensive experience
as a defense attorney; a discussion between Leonard and
Judge Guzmán at the pretrial conference about the govern-
ment’s missing witness motion in limine; and a specific line
of cross–examination that Judge Guzmán believed Leonard
used to lay the groundwork for his closing argument.
Judge Guzmán held, therefore, that Leonard’s conduct was
intentional and found him in contempt under 18 U.S.C.
§§ 401(1) and (3).
On September 25, 2015, Leonard moved to stay the con-
tempt order while his new counsel evaluated arguments for
reconsideration or appeal. Judge Guzmán granted the motion,
extending the time to file a motion for reconsideration or a
notice of appeal until October 20, 2015. Leonard filed a motion
6 No. 16-1297
to vacate the order on that date, arguing that the court failed to
follow the correct procedures under Federal Rule of Criminal
Procedure 42; that he was not given proper notice of the
specific conduct in question and the specific evidence to be
used against him; and that the evidence was insufficient to
support his conviction.
Judge Guzmán denied Leonard’s motion to vacate on
February 4, 2016. On February 12, 2016, Leonard filed a notice
of appeal, seeking review of both the contempt order and the
denial of his motion to vacate. Due to the government’s
recusal, we appointed counsel to act as amicus curiae and
defend the district court’s orders on appeal.
II. DISCUSSION
A. Jurisdiction and Timeliness of Appeal
On appeal, Leonard raises a number of challenges to both
the original contempt order and the denial of his motion to
vacate. He filed his notice of appeal, however, well after the
14–day deadline from the entry of the original contempt order.
Thus, as an initial matter, we must determine whether we have
jurisdiction to review both orders, or whether our review is
limited to the denial of the motion to vacate.
First, we note that the time limit for filing an appeal in a
criminal case, while mandatory, is not jurisdictional. United
States v. Rollins, 607 F.3d 500, 501 (7th Cir. 2010). Moreover, “a
motion for reconsideration presenting a substantive challenge
to the decision … makes a district judge’s order non–final and
postpones the time for appeal until entry of the order on that
motion.” Id.
No. 16-1297 7
Here, Leonard’s filings occurred within the appropriate
time periods and ultimately presented a substantive challenge
to the initial order, such that the decision on that order was not
final until the court denied Leonard’s motion to vacate.
Leonard moved to stay the contempt order eight days after it
was issued. The court granted that motion and extended the
time in which Leonard could file a motion for reconsideration
or a notice of appeal. Leonard also met that deadline with the
filing of his motion to vacate. As described above, that motion
clearly presented substantive challenges to the contempt order.
Thus, Leonard had 14 days from entry of the order denying
that motion, which was the final order, to file his notice of
appeal. Because he met that deadline, his appeal was timely as
to both the original contempt order and the denial of his
motion to vacate. We will, therefore, review all of Leonard’s
challenges to both orders.
B. Sufficiency of the Evidence
We first address Leonard’s contention that there was
insufficient evidence to support his conviction. When review-
ing a sufficiency challenge, we view the facts in the light most
favorable to the prosecution, in this case the district court, and
“ask whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Salinas, 763 F.3d 869, 877 (7th Cir. 2014) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). If the record
presents a reasonable basis for the conviction, it must stand.
United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000).
A court may find a person in contempt under 18 U.S.C.
§ 401(1) for “[m]isbehavior … in its presence or so near thereto
8 No. 16-1297
as to obstruct the administration of justice[.]” A conviction
under this section requires proof of an intentional and objective
obstruction to the administration of justice. United States v.
Griffin, 84 F.3d 820, 832 (7th Cir. 1996) (citing United States v.
Seale, 461 F.2d 345, 367–68 (7th Cir. 1992)). Section 401(3) allows
for a finding of contempt for “[d]isobedience or resistence to [a
court’s] lawful writ, process, order, rule, decree, or command.”
18 U.S.C. § 401(3). A contempt conviction under this subsection
requires proof that the violation of the court’s order was
willful. Doe v. Maywood Hous. Auth., 71 F.3d 1294, 1297 (7th Cir.
1995). As is true for other substantive criminal offenses,
criminal contempt must be proved beyond a reasonable doubt.
Griffin, 84 F.3d at 831–32.
Here, Judge Guzmán found Leonard guilty of contempt
under both §§ 401(1) and (3). Leonard argues that there was
insufficient evidence to show that he intentionally violated the
court’s order, which is an essential element for a conviction
under both sections. In addition, specifically as to § 401(1), he
argues that there was insufficient evidence to show objectively
that his violation constituted an obstruction of justice. How-
ever, as demonstrated below, because we find the evidence
sufficient to sustain his conviction under § 401(3), we need not
address the obstruction argument. See Griffin, 84 F.3d at 833
(“A violation of § 401(3) requires only willful disobedience of
a court order,” whereas § 401(1) requires both subjective intent
and objective obstruction of justice).
Leonard does not deny that he violated a clear order from
the court. Thus, the only remaining question is whether there
was evidence of his willfulness sufficient to sustain his
conviction under § 401(3). The original contempt order
No. 16-1297 9
explicitly stated that Judge Guzmán did not find credible
Leonard’s testimony that he forgot that the argument would be
improper. The order highlighted three reasons that supported
that finding.
First, Judge Guzmán noted that he and Leonard engaged
in an extended conversation about the motion in limine at the
pretrial conference. Second, he found that, based on Leonard’s
extensive experience as a defense lawyer, Leonard should have
been generally aware of the rule that counsel may not argue an
adverse inference from an opposing party’s failure to call a
witness, absent a showing that the witness was available only
to that party. See, e.g., Oxman v. WLS-TV, 12 F.3d 652, 661 (7th
Cir. 1993).
Finally, contrary to Leonard’s contention at the hearing that
he first considered and prepared the improper argument the
night before his closing, Judge Guzmán found that Leonard
laid the groundwork for his improper argument with a
specific line of questioning during the trial. During his cross-
examination of a special agent of the Office of the Inspector
General, Leonard elicited testimony that the agent had numer-
ous conversations with Okusanya within the past 60 days.
Leonard also referred to Okusanya as an “important character”
during this line of questioning. In his motion to vacate,
Leonard argued that when he pursued this line of questioning,
he still believed the government would call Okusanya as a
witness. Judge Guzmán rejected that argument, however, and
found that Leonard was attempting to demonstrate to the jury
that Okusanya was available to government agents should
they have wanted him to testify.
10 No. 16-1297
In our view, these factual findings provided Judge Guzmán
with a sufficient basis to determine that Leonard’s violation
of the order was not an accident or a mistake. Moreover, the
ultimate finding that Leonard acted willfully hinges on
Judge Guzmán’s credibility determination, to which we must
defer. See Griffin, 84 F.3d at 832 (“We defer to the district
judge’s credibility determinations because of his familiarity
with the record and his ability to personally observe the
demeanor of the contemnor.”). Therefore, we find that there
was sufficient evidence to support Leonard’s conviction under
18 U.S.C. § 401(3).
C. Use of Procedures Under Rule 42
Leonard’s next argument is that Judge Guzmán committed
reversible error by failing to comply with the procedures set
forth by Federal Rule of Criminal Procedure 42. Though not
explicitly stated in the show cause order or the original
contempt order, the order denying the motion to vacate
made clear that Judge Guzmán had operated pursuant to
the summary procedures of Rule 42(b). Leonard contends that
this was error and that Judge Guzmán could have proceeded
properly only under Rule 42(a). He also argues that because
Judge Guzmán afforded him a hearing, he erred by not
appointing a prosecutor.
We review for an abuse of discretion a district court’s
decision on whether to proceed under Rule 42(a) or 42(b).
Griffin, 84 F.3d at 829. Rule 42(a) provides that “[a]ny person
who commits criminal contempt may be punished for that
contempt after prosecution on notice.” Fed. R. Crim. P. 42(a).
The notice must state the time and place of the trial, allow a
No. 16-1297 11
reasonable time to prepare a defense, and “state the essential
facts constituting the charged criminal contempt and describe
it as such.” Fed. R. Crim. P. 42(a)(1). Subsection (a) also
requires the court to request that the government prosecute the
contempt, and if the government declines, “the court must
appoint another attorney” to do so. Fed. R. Crim. P. 42(a)(2).
Rule 42(b), however, states that “[n]otwithstanding any other
provision of these rules, the court … may summarily punish a
person who commits criminal contempt in its presence if the
judge saw or heard the contemptuous conduct and so certi-
fies[.]” Fed. R. Crim. P. 42(b).
Leonard’s first argument, that Judge Guzmán erred by
proceeding under Rule 42(b), fails upon review of the rule’s
plain text. It is undeniable that the contemptuous con-
duct—the improper argument regarding Okusanya—occurred
in Judge Guzmán’s presence. Because he observed Leonard
violate the order, Judge Guzmán was not required to afford
him any of the process set forth in subsection (a); he could have
held Leonard in contempt on the spot. See Griffin, 84 F.3d at 829
(noting that, because contemptuous conduct occurred in court
during a criminal trial, the district court had the authority to
act summarily under Rule 42).
Leonard disagrees and cites United States v. Moschiano, 695
F.2d 236 (7th Cir. 1982), as support. There, we held that “resort
to summary disposition of criminal contempt under [then
Rule 42(a), now Rule 42(b)] is permissible only when the
express requirements of the rule are met and when there is a
compelling reason for an immediate remedy or time is of the
essence.” Id. at 251 (quotation marks omitted). Leonard
contends that there was no compelling reason for an immedi-
12 No. 16-1297
ate remedy in this case, as evidenced by Judge Guzmán’s
decision to wait until after the trial concluded to issue
the show cause order. Therefore, because he did not hold
Leonard in contempt in the middle of the closing argument,
Judge Guzmán improperly relied on subsection (b), and
Leonard should have been afforded the full process set forth
in subsection (a).
That argument, however, conflates the need for an immedi-
ate remedy with the need for an immediate finding of con-
tempt. Moschiano does not, nor does any other case Leonard
cites, stand for the proposition that Rule 42(b) is only appropri-
ate if the court makes an immediate finding of contempt once
the contemptuous act has been committed. In fact, the Supreme
Court has held that while a judge has the ability to immedi-
ately and summarily punish contemptuous conduct, “if he
believes the exigencies of the trial require that he defer judg-
ment until its completion he may do so without extinguishing
his power.” Sacher v. United States, 343 U.S. 1, 11 (1952); see also
Griffin, 84 F.3d at 830. Moschiano’s holding simply means that
once the textual requirements of Rule 42(b) are met, there must
also be a showing that there was an immediate need to remedy
the contemptuous conduct. See Moschiano, 695 F.2d at 251–52.
Here, Judge Guzmán did provide an immediate remedy to
the conduct by granting the government’s objection and
striking the improper argument from the jury’s consideration.
The fact that he chose not to interrupt the trial by holding
Leonard in contempt during his closing argument does not
mean that it was inappropriate for him subsequently to
proceed summarily under Rule 42(b). See Sacher, 343 U.S. at 11.
No. 16-1297 13
Leonard then argues that because Judge Guzmán afforded
him a hearing to present testimony in his defense, he was also
required to follow the strict requirements of Rule 42(a),
specifically to appoint a prosecutor. As we have demonstrated,
however, the court was justified in proceeding summarily
under subsection (b). Thus, he was not required even to
provide Leonard with the opportunity to be heard, much less
to appoint an independent prosecutor. We do not believe that
by affording Leonard some additional process—to which he
was not otherwise entitled—Judge Guzmán forfeited his ability
to proceed under Rule 42(b). See United States v. Lowery, 733
F.2d 441, 447–48 (7th Cir. 1984) (indicating that a judge may
employ the summary procedure of Rule 42 while still provid-
ing some additional process, such as a brief hearing).1
D. Due Process Challenge
Leonard’s final argument is that Judge Guzmán violated
his due process rights by failing to give him adequate notice
of the evidence to be used against him. Specifically, he argues
that the order should have notified him that Judge Guzmán
intended to rely on the transcript from the pretrial hearing and
the cross–examination of the special agent as evidence of
1
Leonard separately argues that by appointing amicus curiae for this
appeal, this Court compounded the district court’s error of failing to
appoint a prosecutor. Specifically, he contends that by directing amicus to
defend the district court’s orders, we removed “the neutrality and
independence required of an independent prosecutor under Rule 42(a).”
Again, however, this argument is premised on the rejected proposition that
proceeding under Rule 42(a) would have been the only proper course.
Therefore, we find no merit in this argument and no error in our decision
to appoint amicus.
14 No. 16-1297
his willful contempt. Again, because this challenge turns on
Judge Guzmán’s decision of the appropriate procedures under
Rule 42, we review it for an abuse of discretion. Griffin, 84 F.3d
at 829.
Leonard’s due process argument fails for a number of
reasons. First, as demonstrated by our analysis above,
Judge Guzmán was justified in proceeding summarily under
Rule 42(b). Thus, by the plain language of the rule, Leonard
was not entitled to any specific notice of the charges or the
evidence, as might be required under subsection (a). There can
be no due process violation for inadequate notice if no such
notice was required in the first instance.
However, even if Judge Guzmán were required to provide
Leonard notice of the charges and evidence against him, we
believe he did so adequately. In this context, we have held that
in order to satisfy due process, the notice need only “state the
essential facts constituting the contempt charged[.]” United
States v. Ray, 683 F.2d 1116, 1126 (7th Cir. 1982). Judge Guz-
mán’s order to show cause met that standard. It clearly set
forth, in detail, the order granting the government’s motion
in limine on the missing witness issue. It then stated that “[i]n
direct violation of the Court’s order, during closing argument
in the instant trial, defense counsel expressly argued an
adverse inference from the government’s failure to call a
witness, namely Matthew Okusanya[,]” which constituted a
violation of 18 U.S.C. §§ 401(1)–(3). That description of the
conduct and the charged violations was sufficient to satisfy
due process.
No. 16-1297 15
Leonard contends that because Judge Guzmán did not
specifically state that he intended to examine Leonard’s
conduct at the earlier phases of the trial, he was not able to
adequately prepare his defense. We find that argument
unpersuasive. It is clear, both from his admission that he
violated the order and from the defense he presented in
his testimony (i.e., that he had forgotten about the order), that
Leonard was aware that the issue most crucial to his guilt or
innocence was whether his violation was intentional. Thus, it
should have also been clear to Leonard that, to determine
intent, it would be necessary for Judge Guzmán to consider
Leonard’s actions leading up to the violation. Additionally, at
the start of the hearing, Judge Guzmán asked if Leonard had
any questions about the charges in the show cause order, and
his counsel stated that he did not. Judge Guzmán then took
judicial notice of the entire trial record, and counsel presented
no objection.
Moreover, any potential prejudice that Leonard faced by
initially failing to understand the evidence to be used against
him was cured through his motion to vacate and the denial of
that motion. Leonard raised this exact argument in his motion
to vacate and specifically presented an alternative explanation
for the line of cross–examination, in rebuttal to the finding that
those questions were an indication of his intent to violate the
order. Thus, Judge Guzmán ultimately had the opportunity
to consider all of Leonard’s arguments, which he rejected.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the conviction.