United States v. Barry Gewin , 759 F.3d 72 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 10, 2014 Decided July 25, 2014
No. 12-3097
UNITED STATES OF AMERICA,
APPELLEE
v.
BARRY WILLIAM GEWIN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cr-00366-1)
Cheryl D. Stein argued the cause and filed the briefs for
appellant.
Elizabeth D. Collery, Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the brief
was Mythili Raman, Acting Assistant Attorney General.
Demetra D. Lambros, Attorney, and Elizabeth Trosman,
Assistant U.S. Attorney, entered appearances.
Before: BROWN, MILLETT and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
Concurring opinion filed by Circuit Judge BROWN.
2
Concurring opinion filed by Circuit Judge PILLARD.
BROWN, Circuit Judge: Barry Gewin was convicted of
securities fraud, wire fraud, and conspiracy to commit fraud.
He was sentenced to nine years in prison and ordered to pay
almost $2 million in restitution jointly and severally with his
co-conspirators and a $500,000 fine. The sentencing court
found Gewin had about $650,000 available to him at the time
of sentencing and ordered him to turn those funds over to the
court as partial payment of his financial obligations. Two
years later, the court held a hearing because Gewin had paid
only a negligible amount toward his fine and restitution.
Gewin assured the court payment would be forthcoming, but
subsequently delivered to the clerk of court only a fictitious
International Bill of Exchange of his own creation.
In September 2007, the district court held a hearing to
determine whether it should hold Gewin in civil contempt
until he made the court-ordered payment. Gewin, appearing
pro se, asserted no defense; was held in contempt; and
remained incarcerated—with his original sentence
suspended—for the next five years with little progress made
in his case. Gewin never complied with the court’s payment
order or successfully asserted a defense to the contempt order.
In 2012, Gewin filed a series of documents asserting he could
not make the required payments. In November 2012, the
district court ruled Gewin had not met his burden of making
out an inability-to-comply defense, and ordered Gewin’s
contempt status continued. Gewin appealed the November
2012 order, for the first time challenging his contempt status
in this court.
Gewin’s primary argument on appeal is that the district
court violated his Fifth Amendment right to due process by
3
holding him in contempt without appointing counsel to
represent him. Gewin asks this court to vacate his contempt
citation nunc pro tunc to September 5, 2007. We lack
jurisdiction to hear Gewin’s various challenges to the district
court’s 2007 order because Gewin failed to timely appeal that
order. With regard to the 2012 proceedings, we hold Gewin
waived any due process right to counsel he may have had.
We deny Gewin’s remaining challenges and affirm the order
of the district court.
I
In 2003, a grand jury indicted Gewin and several co-
defendants on counts of securities fraud, wire fraud, and
conspiracy to commit securities and wire fraud. Gewin
proceeded at trial pro se following a “wide-ranging colloquy”
in which the court ensured Gewin understood his decision to
proceed without a lawyer and the risks involved. United
States v. Gewin, 471 F.3d 197, 199–200 (D.C. Cir. 2006).
After a jury convicted Gewin of multiple counts, he hired
counsel to represent him at sentencing. Gewin refused to
provide the probation office with a full release of information
for his financial records, and the court largely based its
determination of Gewin’s assets on a financial affidavit he
had completed. The court found Gewin had available to him
for payment of a fine and restitution $120,000 to $140,000 in
a BB&T bank account; $150,000 that had been taken from
that bank account to be given to Gewin’s wife, Tommi
Ferguson, but that Ferguson had not yet deposited in her own
account; $5,898.82 in a Global Bank of Commerce Account
in Antigua; about $270,000 in a Janney Montgomery Scott
LLC account in Ferguson’s name; and $85,643 in a Sky Bank
account also controlled by Ferguson. The court held the
accounts in Ferguson’s name or under her control were
available to Gewin, and considered those funds in its
4
sentencing determination. Thus, the court held Gewin had
$651,541.82 available for the payment of a fine or restitution.
On April 1, 2005, the court sentenced Gewin to imprisonment
for 108 months, ordered Gewin to pay $1,975,786 in
restitution, jointly and severally with his co-defendants, and
imposed a $500,000 fine. The court also ordered Gewin to
transfer all of the funds described above to the court in partial
payment of the restitution and fine. Gewin, represented by
new counsel, appealed his conviction and sentence, including,
specifically, the determination that he was or would become
able to pay a $500,000 fine—albeit without challenging the
district court’s finding of his control over Ferguson’s
accounts. A panel of this court affirmed the judgment of the
district court. See Gewin, 471 F.3d 197.
In early 2007, after Gewin’s appeal had concluded and at
the government’s request, the district court held a status
conference regarding Gewin’s failure to comply with the
restitution and fine order. At that time, Gewin had paid only
$1,325 toward his obligations. The court informed Gewin
that if he failed to make the required payments and, in
particular, to turn over the money in the accounts specified in
the court’s April 2005 judgment, the government would seek
to hold him in contempt. The court also stated that if Gewin
did not intend to pay, the court wanted to discuss whether
Gewin was going to be represented by counsel for any
contempt proceedings. The court told Gewin he could hire
his own attorney or the court would appoint one for him.
Gewin admitted responsibility for the outstanding fine and
restitution and promised he could and would pay both in full.
The court ordered payment by June 8, 2007.
Around June 8, the clerk of court received from Gewin a
fictitious International Bill of Exchange in the amount of
$2,500,000. The court issued an order to show cause why
5
Gewin should not be held in contempt and ordered Gewin be
brought to court for a hearing on September 5, 2007. Gewin
appeared pro se at the hearing and advanced no legitimate
defense regarding his failure to pay. The court held Gewin in
civil contempt until he paid the required restitution and fine.
Gewin was already in prison serving his criminal sentence,
and the court informed Gewin that time during which he was
held in contempt would not count toward that sentence and
would delay Gewin’s ultimate release date, which had
originally been projected for March 28, 2012. Gewin did not
appeal the district court’s contempt order.
In October 2007, Gewin wrote to the court asserting, for
the first time, he was unable to pay his financial obligations to
the court. Gewin stated he had spent his own assets on
attorney’s fees and living expenses and that the court could
not order him to turn over Ferguson’s funds. In December
2007, the court ordered the government to file a response to
Gewin’s letter addressing, in particular, whether Gewin could
be held in civil contempt for failing to pay an amount that
exceeded the $651,541.82 the court had found Gewin able to
pay at his sentencing hearing. In September 2008, after
receiving the government’s response, the court clarified that
Gewin was only being held in contempt until he paid
$651,541.82, and the court acknowledged that inability to
comply with a court order is a complete defense to a finding
of civil contempt. Nevertheless, the court held Gewin had
failed to establish the defense because his letter contained
nothing but his own unsworn statement regarding his inability
to make the required payment.
In July 2009, the government filed a notice reminding the
district court of Gewin’s continued civil contempt status.
Gewin responded by filing a petition for a writ of habeas
corpus and by stating he did not need the court to appoint an
6
attorney to represent him. The district court denied Gewin’s
collateral attack as procedurally barred and without factual or
legal merit. Gewin did not appeal from this April 2011
decision by the district court.
In May 2011, the district court scheduled another status
conference on Gewin’s continued incarceration for civil
contempt. The court appointed A.J. Kramer, the Federal
Public Defender, as advisory counsel to Gewin. At a July 19,
2011 status conference, Mr. Kramer indicated he had offered
to move to purge the contempt, but Gewin had declined. In
response to questions from the district judge, Gewin reiterated
this refusal on the record. Mr. Kramer told Gewin that if
Gewin changed his mind, he could contact Mr. Kramer.
In February 2012, as Gewin’s original release date was
approaching, Gewin filed several challenges to his civil
contempt status. He acknowledged evidence of his inability
to pay had been requested years earlier, apologized for taking
so long to respond, and explained he was distracted over the
years by efforts to vacate his conviction. Gewin insisted he
had no control over his wife’s accounts and provided no
information about what had happened to these funds. With
respect to accounts in his name, Gewin said he spent the funds
on legal and personal expenses. He attached assorted bank
statements displaying a widely fluctuating balance. He also
attached receipts showing various payments for legal
expenses, but provided no documentation about the source of
those payments. On the contrary, there was some evidence
his relatives paid those expenses from previously undisclosed
bank accounts. Gewin was unrepresented before the district
court throughout 2012.
On November 6, 2012, after the government responded to
Gewin’s filings, the district court issued an order finding
7
Gewin had failed to demonstrate his current inability to pay
the amounts owed and continuing to hold him in contempt.
On November 19, 2012, Gewin filed this appeal challenging
the district court’s November 6, 2012 order.
While this appeal was pending, the government moved to
terminate Gewin’s ongoing civil contempt status. The
government stated it no longer thought continued contempt
would induce Gewin to comply with the court’s orders.
Accordingly, the district court terminated the contempt on
October 24, 2013. The district court noted Gewin’s contempt
had added six years to his term of incarceration.
In this appeal, Gewin alleges various errors in both the
district court’s original 2007 contempt order and its more
recent 2012 order continuing Gewin’s contempt status.
Gewin asks this court to vacate his contempt status nunc pro
tunc and order that the entire time he has spent incarcerated
for civil contempt be counted toward the fulfillment of his
underlying sentence.
II
We begin by clarifying the scope of our jurisdiction and
the standard of review. This appeal, filed on November 19,
2012, arises from the district court’s November 6, 2012 order
continuing to hold Gewin in civil contempt. Yet Gewin
alleges certain errors arising from the district court’s show-
cause hearing on September 5, 2007 and the court’s contempt
finding of that date. Gewin failed to timely appeal the
September 5, 2007 order, see 28 U.S.C. § 2107(b) (notice of
appeal must be filed within 60 days after entry of order
appealed from where the United States is a party), and we
therefore lack jurisdiction to address alleged errors in the
original contempt order, see Bowles v. Russell, 551 U.S. 205,
8
209–10 (2007) (“[T]he taking of an appeal [in a civil case]
within the prescribed time is mandatory and jurisdictional.”).
The fact that the 2012 order related to the same continuing
contempt as the 2007 order does not give us jurisdiction to
hear an untimely appeal from an earlier order, which was
itself an appealable final order. Cf. In re Grand Jury
Proceedings, 795 F.2d 226, 229–30 (1st Cir. 1986) (holding a
motion to purge contempt does not toll time for appeal of
contempt order, nor can court hearing appeal of order denying
a motion to purge review alleged errors in original contempt
order); 15B CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE §§ 3916, 3917 n.70 (2d ed. 1992
& Supp. 2014) (“It is . . . well settled that appeal from denial
of a motion to vacate a judgment does not support review of
the original judgment.”).
At oral argument, Gewin’s counsel suggested we have
jurisdiction to review errors from the 2007 proceedings under
equitable principles because Gewin’s failure to appeal in 2007
resulted from his lack of counsel in the contempt proceedings.
But even if we were inclined to adopt such an equitable
principle, we “ha[ve] no authority to create equitable
exceptions to jurisdictional requirements.” Bowles, 551 U.S.
at 214; see Carrascosa v. McGuire, 520 F.3d 249, 254 n.9 (3d
Cir. 2008) (rejecting argument that previous counsel’s failure
to file timely notice of appeal could be excused because that
argument “seeks essentially equitable relief from the time
limit on appeals,” which Bowles precludes). Gewin claims he
is aided in this argument by Rodriquez v. United States, 395
U.S. 327, 331–32 (1969), which held that where a criminal
defendant fails to file a timely appeal because he was not
informed at sentencing of his right to appeal or that the clerk
would, on request, file a notice of appeal for him, the
defendant is entitled to resentencing so he may perfect a
timely appeal. However, no case establishes an analogous
9
remedy for civil litigants. Indeed, the Rodriquez remedy is
triggered when a district court fails to abide by Federal Rule
of Criminal Procedure 32(j)(1), which requires a district court
to advise a defendant of his right to appeal. See id. There is
no such rule in civil cases. Furthermore, to the extent
Rodriquez relied on equitable principles, we cannot transfer
its reasoning to the civil context because the time limit for
filing a civil appeal—as opposed to that for filing a criminal
appeal—is jurisdictional. See United States v. Byfield, 522
F.3d 400, 403 n.2 (D.C. Cir. 2008). 1
We have jurisdiction only to review errors arising from
the November 2012 order from which Gewin appealed.
Gewin may bring a challenge to the district court’s decision
not to purge the contempt at that time, but he cannot challenge
the district court’s original finding of contempt. Insofar as
Gewin appeals the district court’s 2007 contempt order, we
dismiss that portion of the appeal.
Even with regard to the alleged errors properly before
this court, Gewin failed to raise many of his objections—and
we note below which ones in particular—before the district
court. “To preserve a claim of error on appeal, a party
typically must raise the issue before the trial court. No
procedural principle is more familiar than that a right may be
forfeited in criminal as well as civil cases by the failure to
make timely assertion of the right before a tribunal having
1
Gewin also suggested in rebuttal at oral argument that the 2007
order is reviewable because it is “inextricably bound up with” the
2012 order from which Gewin properly appealed. See Salazar ex
rel. Salazar v. District of Columbia, 602 F.3d 431, 434, 436 (D.C.
Cir. 2010). But Gewin forfeited any such argument by failing to
make it in his briefs or even in his opening remarks at oral
argument. See Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99,
108 n.4 (D.C. Cir. 2003).
10
jurisdiction to determine it.” Salazar ex rel. Salazar v.
District of Columbia, 602 F.3d 431, 436 (D.C. Cir. 2010).
Most of the arguments Gewin raises for the first time on
appeal are forfeited. Therefore, Gewin will have to
demonstrate error under a more onerous standard of review in
order to obtain reversal.
“Generally, an argument not made in the trial
court . . . will not be considered absent exceptional
circumstances.” Id. at 437. Exceptional circumstances
include “cases involving uncertainty in the law; novel,
important, and recurring questions of federal law; intervening
change in the law; and extraordinary situations with the
potential for miscarriages of justice.” Flynn v. Comm’r, 269
F.3d 1064, 1069 (D.C. Cir. 2001). Some courts, importing a
standard from the criminal context, see FED. R. CRIM. P.
52(b), have indicated they will review unpreserved claims in
civil cases for plain error. See Salazar, 602 F.3d at 437. A
court reverses for plain error where the appellant
demonstrates there is (1) a legal error that (2) is plain at the
time of appellate review, (3) affects substantial rights of the
parties, and (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id.; see also United
States v. Olano, 507 U.S. 725, 732 (1993). We have yet to
determine whether the “exceptional circumstances” test and
“plain error” review inquiries are coterminous. Salazar, 602
F.3d at 437. We need not decide this question now because,
as we explain below, Gewin’s forfeited arguments
demonstrate neither exceptional circumstances nor plain error.
III
Gewin argues the district court violated his Fifth
Amendment right to due process by not offering to appoint
counsel to represent him through the contempt proceedings.
11
Gewin’s argument primarily focuses on his right to counsel at
the original contempt hearing in 2007. However, as explained
above, Gewin’s right-to-counsel claim is before us only as it
relates to the proceedings leading up to the November 2012
order. We offer no opinion on whether Gewin had a right to
counsel at his original contempt hearing.
With regard to the 2012 proceedings, the government
argues Gewin forfeited his due process claim by not raising it
before the district court and, therefore, we should not review
that claim absent exceptional circumstances. Gewin responds
that the right to counsel is not subject to forfeiture, and that
the right may be waived only by an intentional
relinquishment. Whether Gewin’s claim was subject to
forfeiture depends on whether the due process right to counsel
is best analogized to other due process claims, which are
subject to forfeiture, or to the right to counsel that emanates
from other constitutional provisions, which generally cannot
be forfeited. Compare, e.g., United States v. Barnes, 295 F.3d
1354, 1366–67 (D.C. Cir. 2002) (reviewing for plain error a
due process argument, not raised in district court, that
defendant was not given notice his conduct constituted a
crime), Norwest Bank Neb., N.A. v. W.R. Grace & Co., 960
F.2d 754, 756–57 (8th Cir. 1992) (denying review of
argument not made in district court that the application of the
statute of limitations violated due process), and In re Grand
Jury Proceedings, 875 F.2d 927, 931–32 (1st Cir. 1989)
(holding criminal contemnor’s failure to argue before the
district court that show cause order violated due process right
to notice and opportunity to prepare a defense “deprived him
of any right to raise these matters on appeal” absent plain
error), with Johnson v. Zerbst, 304 U.S. 458, 464 (1938)
(requiring “intelligent waiver” of the Sixth Amendment right
to counsel in criminal proceedings), and Miranda v. Arizona,
384 U.S. 436, 467–71 (1966) (holding an individual’s failure
12
to ask for a lawyer prior to interrogation does not constitute
waiver of the right to counsel derived from the Fifth
Amendment’s Self-Incrimination Clause). But see United
States v. Thomas, 357 F.3d 357, 362–63 (3d Cir. 2004)
(noting a defendant may forfeit his Sixth Amendment right to
counsel through “extremely serious misconduct”). We need
not decide in this case whether a civil defendant’s claimed
due process right to counsel is forfeited if not raised before
the district court, however. Nor do we need to decide whether
Gewin had a right to counsel under Turner v. Rogers, 131 S.
Ct. 2507 (2011), and Mathews v. Eldridge, 424 U.S. 319(1976), which establish the framework for determining
whether due process requires a civil contemnor be afforded
counsel in a particular case. Even assuming arguendo Gewin
had a right to counsel that was not forfeited, the record in this
case demonstrates Gewin intentionally waived any such right.
The district court made clear to Gewin as early as April
2007 that, in the event the government moved for a finding of
civil contempt against Gewin, he could obtain his own
attorney or the court would appoint one for him. Supp’l J.A.
262–63, 286–87. While the offer to appoint counsel was not
reiterated at the September 2007 show cause hearing, the
district judge did make clear to Gewin the consequences of
his being found in contempt, specifying both at that hearing
and in a subsequent order that Gewin would be incarcerated
until he complied with the court’s payment orders and that the
running of his criminal sentence would be suspended during
that time.
Gewin’s own actions and statements confirm that Gewin
was aware of a general right to counsel and of the court’s
continuing ability and willingness to appoint counsel for him.
Gewin had previously chosen to represent himself at trial.
After an adverse jury decision, Gewin exercised his right by
13
hiring counsel to represent him at sentencing and on appeal.
And Gewin chose to challenge before this court his waiver of
trial counsel, receiving from us a decision rejecting his claim
and finding his waiver knowing and voluntary. See Gewin,
471 F.3d at 198–200. In July 2009, Gewin filed a habeas
petition in which he informed the court of his dissatisfaction
with his previous representation, declared that he was
competent to handle his own affairs, and stated that
“no . . . attorneys need to be appointed” for him. Petition for
Writ of Habeas Corpus, United States v. Gewin, No. 1:03-cr-
00366 (D.D.C. July 30, 2009), ECF No. 558. In response, the
district court confirmed its continuing “inclin[ation] to
appoint counsel to represent Mr. Gewin and/or to consult with
him regarding his own pro se representation if requested,” but
accepted Gewin’s request that it not do so. Order of Nov. 19,
2009, United States v. Gewin, No. 1:03-cr-00366 (D.D.C.),
ECF No. 563.
Moreover, in April 2011, the district court directed the
Federal Public Defender’s Office to meet with Gewin, and the
court subsequently appointed the Public Defender himself,
A.J. Kramer, as advisory counsel to Gewin in connection with
the July 2011 status conference on his contempt. Mr. Kramer
consulted with Gewin. Although Gewin declined to allow
Mr. Kramer to file anything on his behalf at that time, Gewin
knew Mr. Kramer remained available if he ever changed his
mind and desired such legal representation. Tr. of Status
Hearing at 6, July 19, 2011, Supp’l J.A. 357. The court
explained that it had appointed Mr. Kramer to make sure
Gewin was aware of all possible grounds on which he could
seek to purge the contempt, id. at 5, Supp’l J.A. 356, and Mr.
Kramer promised to keep in touch with Gewin, id. at 12,
Supp’l J.A. 363. In short, by 2012, the district court had
informed Gewin fully and repeatedly of the availability of
appointed counsel to represent or assist him in the contempt
14
proceedings. Gewin was aware of the district court’s offer of
counsel, and his actions demonstrate that he knowingly and
intelligently declined to accept.
Given all of these facts and circumstances, Gewin’s
decision to proceed pro se in his submissions to the court in
2012 are sufficient to constitute a waiver of any due process
right to counsel he may have had in 2012. Cf. Buhl v.
Cooksey, 233 F.3d 783, 789–90 (3d Cir. 2000) (“Waiver of
the right to counsel depends in each case upon the particular
facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.”);
United States v. Veltman, 9 F.3d 718, 721 & n.5 (8th Cir.
1993) (holding a prisoner’s due process right to independent
assistance when threatened with involuntary commitment to a
mental hospital is subject to lower standard of waiver than
Sixth Amendment right to counsel in criminal proceedings);
id. at 721 (“The right to counsel varies depending on the
context in which it is invoked, as do the requisites for
waiver.”).
We reiterate that our finding that Gewin waived his
alleged right to counsel is not a decision that Gewin’s due
process claim could not be lost by means short of waiver.
Furthermore, our decision is not a holding that Gewin in fact
had a due process right to counsel. Rather, we hold simply
that even if Gewin’s due process claim was not forfeited, and
even if Gewin had a right to counsel under the Due Process
Clause, Gewin waived that right in the course of the district
court proceedings. We will deny Gewin’s due process claim.
IV
Gewin argues the district court erred in the 2012
proceedings by refusing to reopen the court’s determination
15
made at the 2005 sentencing hearing that Gewin had control
over the bank accounts in his wife’s name or under her
control. In his 2012 filings, Gewin argued he was unable to
pay the fine and restitution because he did not have, and never
had, control over his wife’s accounts. The district court
rejected this argument by relying on its finding at sentencing.
Gewin’s argument implicates two distinct principles.
The first is that present inability to comply is a complete
defense to civil contempt. See United States v. Rylander, 460
U.S. 752, 757 (1983). The second is that “a contempt
proceeding does not open to reconsideration the legal or
factual basis of the order alleged to have been disobeyed and
thus become a retrial of the original controversy.” Maggio v.
Zeitz, 333 U.S. 56, 69 (1948). One of the factual bases of the
district court’s sentencing order was its finding that
Ferguson’s accounts could be used to pay Gewin’s fine and
restitution as of the time of sentencing. Gewin was not
permitted to challenge this finding at the contempt
proceedings. On the other hand, Gewin was permitted to
argue in 2012 that he no longer had access to his wife’s
accounts. See id. at 76. The district court was bound to allow
Gewin to “give any evidence of present conditions or
intervening events which corroborate him.” See id. For
instance, if Gewin had presented evidence that between his
2005 sentencing and the 2012 contempt proceedings his wife
had moved her assets to a different account to which Gewin
had no access, the district court would be bound to consider
whether Gewin still had access to his wife’s assets.
Alternatively, if Gewin had presented evidence that he had
attempted in good faith to access the funds at issue but had
been denied access by the relevant banks because he was not
an account holder, and had been denied assistance in
accessing the funds by his wife, the district court would have
16
been obligated to consider whether the facts found at
sentencing were still true.
The district court correctly adhered to these principles.
The court properly rejected Gewin’s attempt to show he never
had access to his wife’s funds because such an argument was
an attempt to reopen the factual basis for the 2005 sentencing.
See Order of Nov. 6, 2012, at 6–7, United States v. Gewin,
No. 1:03-cr-00366 (D.D.C.), ECF No. 602. The district court
additionally recognized Gewin might be able to demonstrate
current inability to access the funds but rejected any such
argument on the merits. The court stated: “Gewin’s 2012
filings provide no additional factual content suggesting cause
to revisit [the 2005] finding.” Id. at 7. The district court did
not err in this finding because Gewin’s 2012 filings were
directed at attacking the court’s 2005 determination rather
than demonstrating any changed circumstances. See Gewin
Letter of Feb. 6, 2012, United States v. Gewin, No. 1:03-cr-
00366 (D.D.C.), ECF No. 581 (presenting no new facts and
noting the relevant facts “have been before the court for 7 or 8
years”); Motion for Court’s Acknowledgement, United States
v. Gewin, No. 1:03-cr-00366 (D.D.C. Mar. 5, 2012), ECF No.
583 (resting defense on fraud allegedly perpetrated by the
government at the 2005 sentencing); Supplement #1, United
States v. Gewin, No. 1:03-cr-00366 (D.D.C. Mar. 15, 2012),
ECF No. 585 (same). Gewin did not submit substantial
evidence of a present inability to access his wife’s funds. 2
2
Neither party has addressed whether this alleged error affected the
outcome of the district court proceedings, and thus whether reversal
would be warranted even if Gewin were able to demonstrate error.
See FED R. CIV. P. 61 (“Unless justice requires otherwise, no
error . . . is ground for . . . vacating, modifying, or otherwise
disturbing a judgment or order. At every stage of the proceeding,
the court must disregard all errors and defects that do not affect any
party’s substantial rights.”); Muldrow ex rel. Estate of Muldrow v.
17
V
In addition to the arguments already addressed, Gewin
claims the district court made numerous other errors. Because
these arguments are plainly meritless, we address them only
briefly.
First, Gewin claims the district court erred by holding
him in contempt without finding he had a present ability to
pay. Whatever may be the case with regard to the district
court’s 2007 order, it is clear that in 2012 the district court
considered and rejected Gewin’s argument that he was unable
to pay. The district court stated:
Regrettably, because Gewin has once again declined the
opportunity to provide the documents and information
Re-Direct, Inc., 493 F.3d 160, 168 (D.C. Cir. 2007). Since the
district court also held Gewin had not shown he lacked present
access to the funds that had been held in his own name as of the
time of sentencing, see Sentencing Tr. at 104, Apr. 1, 2005, Supp’l
J.A. 238, it is doubtful that simply prevailing on the issue of
whether Gewin had access to Ferguson’s funds in 2012 would have
been sufficient to establish Gewin’s inability to comply, at least
partially, with the fine and restitution order.
Gewin does not argue on appeal that the district court erred in
holding he had not met his burden in demonstrating he had
dissipated his own funds by 2012. Indeed, Gewin is caught in a
Catch-22 in this regard. If Gewin had been able to convince the
district court he had spent his funds—and that he did not have
access to Ferguson’s accounts—he would have successfully made
out a defense to civil contempt. But he also would have exposed
himself to a charge of criminal contempt for willfully dissipating
his funds in contravention of a court order. A criminal contempt
conviction would likely have carried its own term of incarceration.
18
that would seem most readily to support a present
inability to pay the fine and restitution amounts due and
owing, he has failed to provide a basis upon which this
Court should reconsider its Civil Contempt Order.
Order of Nov. 6, 2012, at 11–12, United States v. Gewin, No.
1:03-cr-00366 (D.D.C.), ECF No. 602. Because the court
explicitly found Gewin had failed to meet his burden of proof
in asserting an inability-to-pay defense, Gewin’s claim that
the court did not consider the defense at all must be rejected.
Second, Gewin claims the district court erred by holding
him in civil contempt rather than acting under the provisions
of 18 U.S.C. §§ 3613A and 3615. Although this alleged error
would have been most properly raised in the context of the
2007 proceedings, we broadly construe Gewin’s argument as
challenging the power of the district court to continue
Gewin’s contempt sanction in 2012. But even as it relates to
the 2012 order, this argument is forfeited because Gewin
failed to assert it before the district court. Gewin has
demonstrated neither plain error nor exceptional
circumstances warranting reversal. The court’s alleged failure
to comply with the procedural dictates of § 3613A—even if
error—was not prejudicial. 3 And nothing in § 3615, which
3
18 U.S.C. § 3613A requires that a court, in determining what
action to take when a defendant is in default on payment of a fine or
restitution, “consider the defendant’s employment status, earning
ability, financial resources, the willfulness in failing to comply with
the fine or restitution order, and any other circumstances that may
have a bearing on the defendant’s ability or failure to comply with
the order of a fine or restitution.” 18 U.S.C. § 3613A(a)(2). The
statute also states that, “[t]o the extent practicable,” in a hearing
held to address a defendant’s default, the prisoner should participate
via telephone or video conference without being removed from the
prison in which he is confined. Id. § 3613A(b)(2).
19
provides that a defendant’s willful failure to pay a fine is a
misdemeanor punishable by fine or imprisonment for up to
one year, suggests Congress meant the statute to preempt the
courts’ common law civil contempt power. Indeed, other
statutes suggest the opposite. See 18 U.S.C. § 3613A(a)(1)
(“Upon a finding that the defendant is in default on a payment
of a fine or restitution, the court may . . . hold the defendant in
contempt of court . . . or take any other action necessary to
obtain compliance with the order of a fine or restitution.”).
Third, Gewin argues the length of his confinement for
civil contempt demonstrates that at some point the contempt
lost its coercive effect and became punitive. Cf. Maggio, 333
U.S. at 76 (“It is everywhere admitted that even if he is
committed, he will not be held in jail forever if he does not
comply. His denial of possession is given credit after
demonstration that a period in prison does not produce the
goods.”). Because this claim was never presented to the
district court, it is forfeited. Gewin has not met his burden of
demonstrating his lengthy incarceration for contempt ever
became punitive in nature. Indeed, he has identified no
particular date as of which the incarceration became punitive,
nor has he presented any evidence that would allow us to
determine such a date. There is no evidence the contempt
sanction had become punitive as of the district court’s
November 2012 order. On the contrary, it seems Gewin took
no serious efforts to contest his contempt status until 2012, as
his original release date was approaching. Indeed, Gewin
admitted as much, conceding in a March 21, 2012 filing that
he “probably did not handle this contempt issue properly,”
having “basically ignored it (except for [his] October 30, 2007
letter) over the years.” Supplement #2, at 9, United States v.
Gewin, No. 1:03-cr-00366 (D.D.C. Mar. 21, 2012), ECF No.
586. This suggests it was only in 2012—when it seems that,
after numerous warnings by the district court that his criminal
20
sentence had been suspended, Gewin actually began to feel
the reality of his contempt status—that the contempt sanction
had the most coercive force. Gewin has shown neither plain
error nor exceptional circumstances warranting reversal.
Finally, Gewin asks this case be reassigned to a different
district judge for further proceedings that may arise during the
court’s supervision of his sentence. Although Gewin argues
the “long and torturous history” of the case has “engendered
some personal animus on the part of the trial court,”
Appellant’s Br. 45, he points to no evidence of such animus.
The protracted nature of the proceedings below does not
justify reassignment of this case. See Liteky v. United States,
510 U.S. 540, 551, 555–56 (1994). We will deny Gewin’s
request for reassignment.
***
For the foregoing reasons, Gewin’s appeal is dismissed
insofar as he challenges the district court’s 2007 contempt
order. Gewin’s challenges to the November 2012 order are
denied, and the order of the district court is
Affirmed.
BROWN, Circuit Judge, concurring: Being in full
agreement with the court’s opinion, I write separately only to
emphasize that the Supreme Court has never articulated a
presumptive right to counsel in the civil context. As Judge
Pillard acknowledges in her concurrence, we are not dealing
here with a Sixth Amendment right to counsel. The question
is whether the Due Process Clause entitled Gewin to
appointed counsel at his civil contempt proceeding. That
determination—were it necessary for the court to decide it—
would necessarily depend on a case-by-case assessment rather
than a categorical rule. See Turner v. Rogers, 131 S. Ct.
2507, 2517–18, 2520 (2011); Mathews v. Eldridge, 424 U.S.
319, 334–35 (1976).
Contrary to the implication of the concurrence, Turner
does not craft a narrow exception to the general rule that an
indigent litigant has a right to appointed counsel whenever he
is threatened with the deprivation of his physical liberty. The
Court in fact recognizes “the presumption that an indigent
litigant has a right to appointed counsel only when, if he loses,
he may be deprived of his physical liberty.” Turner, 131 S.
Ct. at 2516 (emphasis added). Thus, whereas the Supreme
Court acknowledged the threat of incarceration is a necessary
condition to the finding of a right to counsel in the civil
context, the concurrence suggests such a threat is a sufficient
condition to invoke a presumption of a right to counsel. Not
so. Cf. Gagnon v. Scarpelli, 411 U.S. 778 (1973) (holding a
criminal offender facing revocation of probation and
imprisonment does not have a right to counsel at a probation
revocation hearing). Indeed, the Supreme Court makes this
point exceedingly clear in the next paragraph of Turner:
“[T]he Court previously ha[s] found a right to counsel “only”
in cases involving incarceration, not that a right to counsel
exists in all such cases (a position that would have been
difficult to reconcile with Gagnon).” 131 S. Ct. at 2517.
2
Turner does not establish (or perpetuate) a presumption
that an indigent civil defendant threatened with incarceration
is entitled to counsel under the Due Process Clause. 1 On the
contrary, the Supreme Court held that, rather than apply any
presumption, courts are to evaluate a litigant’s due process
right to counsel claim under the familiar Mathews v. Eldridge
framework. Under that framework, a court is to consider
three factors: “(1) the nature of the private interest that will
be affected, (2) the comparative risk of an erroneous
deprivation of that interest with and without additional or
substitute procedural safeguards, and (3) the nature and
magnitude of any countervailing interest in not providing
additional or substitute procedural requirements.” Turner,
131 S. Ct. at 2517–18. The application of these three factors
to Gewin’s circumstances is complicated. 2
1
Turner overruled earlier cases from the Courts of Appeals to the
extent they were inconsistent with this proposition, including
Walker v. McLain, 768 F.2d 1181 (10th Cir. 1985). See
Concurrence at 5. Compare Turner, 131 S. Ct. at 2520 (“[T]he Due
Process Clause does not automatically require the provision of
counsel at civil contempt proceedings to an indigent individual who
is subject to a child support order, even if that individual faces
incarceration (for up to a year).”), with Walker, 768 F.2d at 1185(“[D]ue process does require, at a minimum, that an indigent
defendant threatened with incarceration for civil contempt for
nonsupport . . . be appointed counsel to assist him in his defense.”).
2
It is worth noting that the court does not decide the antecedent
question of whether Gewin was indigent. Judge Pillard concludes
that because Gewin owed as fine and restitution more than the
district court had found his assets were worth, Gewin would have
been unable to pay for his own lawyer at the civil contempt
proceedings. But that conclusion ignores Gewin’s experience at
hiding his assets, and as an appellate court we are in no position to
make an initial factual determination regarding Gewin’s ability to
hire a lawyer. Further, despite the district court’s sentence, Gewin
3
While the threat of an indefinite period of incarceration
“argues strongly for the right to counsel,” id. at 2518,
reasonable minds could differ as to the risk of erroneous
deprivation or the nature of countervailing interests. Gewin
appears to be a sophisticated litigant who sought counsel
when he desired it and whose commitment offense involved
financial fraud including concealment of assets. Indeed,
Gewin’s secretive and uncooperative attitude was largely
responsible for the contempt finding and continually clouded
the question of indigence.
* * *
No doubt it would be a “best practice” for the district
court, where it is clear that a civil contemnor has a due
process right to counsel, to engage a civil defendant in a
colloquy to ensure he understands his right. But to demand
the colloquy because it would help a reviewing court
determine whether waiver of the right was “knowing and
intelligent” puts the cart before the horse. I need merely
reiterate what the court’s opinion makes exceedingly clear:
we do not decide today whether such a high standard of
waiver is necessary for a civil defendant to forgo a due
process right to counsel. It is entirely possible that this court
will, in a future case, conclude that this right, like so many
others, can be lost by simple forfeiture. We need not, and do
not, resolve this issue now.
was able to hire a lawyer to represent him before this court both on
direct appeal from his criminal conviction and in the instant appeal.
His indigence in 2007 was anything but certain.
PILLARD, Circuit Judge, concurring: The legal system is
not functioning at its best when an uncounseled man serves
six years in prison for civil contempt of court. Such an
extraordinary period of imprisonment for contempt is
especially troubling where, as here, the contemnor was
evidently unable to afford a lawyer. The district court
assumed when it held Barry Gewin in contempt in 2007 that
he had a right to court-appointed counsel, but this case is
before us because the court did not conduct a colloquy on the
record at that time. It was not until 2011 that a waiver of that
right was clear on the record.
As the court aptly explains, any 2007 deprivation of the
right to counsel that Gewin may have suffered is beyond our
power to remedy because he did not raise or appeal the lack of
appointed counsel until now. Gewin here appeals from the
2012 order continuing his contempt. By the time the district
judge entered that order, she had appointed the Federal Public
Defender himself as advisory counsel. The Federal Public
Defender had met with Gewin and made both concrete and
ongoing offers of full representation, which Gewin declined.
I concur in the court’s opinion because I conclude that, in the
circumstances of this case, the Federal Public Defender’s in-
person proffer of full and free representation, with the court’s
encouragement, and Gewin’s refusal of that offer validly
waived any right to counsel that Gewin may have had relating
to the order under review.1
1
I concur in the court’s conclusion that Gewin waived his right to
counsel, but I disagree with the court’s reliance, even in part, on the
fact that Gewin received a warning at his criminal trial informing
him of the dangers of proceeding pro se and had chosen to
represent himself through the criminal trial. See Slip Op. at 12-13.
Gewin’s right to counsel in the criminal proceedings derived from
the Sixth Amendment. The civil contempt hearing, in contrast, was
a separate and distinct civil proceeding. Any information Gewin
received about his right to counsel during his criminal proceeding
2
I write separately to clarify two points. First, to the
extent that there is any suggestion in the court’s opinion that
Gewin effectively waived his right to counsel before the
Federal Public Defender appeared and Gewin refused his
representation, I disagree that waiver could be accomplished
by the limited and unclear communications on the record
leading up to the Defender’s appearance. Second, given the
course of the contempt proceedings in the district court, it
bears emphasis that, where a due process right to counsel
attaches, a prompt and explicit colloquy on the record
ordinarily is required before a court may find a valid waiver
of that right.
One hopes an extended contempt imposed on an
uncounseled person, without contemporaneous waiver of a
right to representation, is exceedingly rare. But situations that
prompt judges to use our contempt power tend to be fraught.
Disobedient and disrespectful litigants understandably raise
the risk of confusion and error. It is thus especially important
to follow standard “best practices,” such as the Civil
Contempt Procedure set out in the Federal Judicial Center’s
Benchbook for U.S. District Court Judges, before imprisoning
an uncounseled, indigent person for contempt of court.
***
Gewin faced civil contempt because he did not pay the
fine and restitution he owed under his felony sentence for
securities and wire fraud and conspiracy. At sentencing, all of
his identifiable assets totaled approximately $650,000, and the
district court ordered him immediately to pay the full amount
towards his $2.4 million fine and restitution obligation.
was insufficient to put him on notice that he had a similar right to
counsel when faced with civil contempt.
3
Owing more than his known assets to the court, Gewin
presumptively had no funds available to pay a lawyer during
his subsequent civil contempt proceeding. An indigent civil
contemnor facing a deprivation of his physical liberty is not
automatically entitled to court-appointed counsel. But, the
factors that tipped the due process analysis against appointing
counsel in Turner v. Rogers, 131 S. Ct. 2507 (2011), favored
it here, as the district court seems to have assumed. The
district judge accordingly told Gewin at an April 2007 hearing
that, if she had to resort to the contempt power to induce him
to pay his fine and restitution, he could get his own lawyer or
she would “appoint somebody since there are ramifications
for you.” Supp’l J.A. at 287. The court appears to have
assumed, reasonably enough, that Gewin was indigent, given
that the sentencing obligation of $2.4 million far exceeded the
funds in his identified accounts.
Five months later, when Gewin failed to comply with the
order to pay, the district judge held him in contempt. At the
September 2007 contempt hearing, the judge did not follow
up on her comment at the April hearing that she would ensure
that Gewin had counsel. She did not inform Gewin on the
record whether he had a right to counsel and, if so, that
waiving it carried serious risks. She did not record any
knowing and intelligent waiver. Instead, communications
between the court and Gewin about any right to counsel
occurred at later conferences or hearings, were not fully
explicit, and spread over years, making it hard to determine
what Gewin knew and what he intended regarding his right to
counsel. Gewin remained in prison for contempt for six
years.
It was not until 2011 that the district judge summoned the
Federal Public Defender to meet and confer privately with
Gewin and offer his assistance. The Defender offered to
4
represent Gewin, and he proposed filing a motion to purge the
contempt. Gewin declined the Defender’s offer of free and
expert legal representation.
In 2013, during the pendency of this appeal, the
government acknowledged that the contempt order had lost
any coercive force and so should end. Gewin has thus only
recently begun to serve his sentence of incarceration—a
sentence that, but for the contempt, would now be complete.2
The district judge assumed without deciding that due
process required her to appoint counsel—or to determine on
the record that Gewin waived any such right—before she held
him in contempt. We, too, dispose of the appeal without
deciding that issue. Cf. Appellee Br. at 33 (the government
2
Gewin contended, for the first time at oral argument on appeal,
that his right to retained counsel was also violated because, when he
appeared at the September 2007 contempt hearing without counsel,
the court failed to provide him with a reasonable amount of time to
hire his own lawyer. Oral Arg. Tr. at 13:19-24. Gewin correctly
notes that the Due Process Clause is not only relevant to the
question whether an indigent defendant is entitled to appointed
counsel, but also ensures that a non-indigent civil contemnor has
the right to retain an attorney to represent him during contempt
proceedings. See generally Gray v. New Eng. Tel. & Tel. Co., 792
F.2d 251, 257 (1st Cir. 1986) (“[A] civil litigant does have a
constitutional right, deriving from due process, to retain hired
counsel in a civil case.”); Potashnick v. Port City Constr. Co., 609
F.2d 1101, 1117-18 (5th Cir. 1980) (same); cf. Goldberg v. Kelly,
397 U.S. 254, 270 (1970) (a recipient of welfare benefits must be
allowed to retain an attorney to represent him during a hearing to
terminate those benefits, if he so desires). Gewin, who is
represented by counsel on appeal, forfeited that argument, however,
by failing to discuss it in his briefing and not raising it until oral
argument. See Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99,
108 n.4 (D.C. Cir. 2003).
5
assumes that, “[h]ad Gewin sought court-appointed counsel”
in October 2007, when he wrote to the court that he had “no
funds, or so-called ‘money’ in any accounts,” appointed
counsel “would no doubt have been supplied”). Those
assumptions that a right to counsel may have attached in these
circumstances are at least reasonable.
Potential civil contemnors facing incarceration have a
due process right to appointed counsel, subject to the Supreme
Court’s analysis in Turner. See generally Walker v. McLain,
768 F.2d 1181, 1185 (10th Cir. 1985) (collecting pre-Turner
cases holding that a civil contemnor had a due process right to
counsel). Before Turner, the Court had recognized in certain
contexts “the presumption that an indigent litigant has a right
to appointed counsel,” limited to cases in which the litigant
“may be deprived of his physical liberty.” 131 S. Ct. at 2516(internal quotation marks omitted). Turner found that
presumption rebutted in the context of a state civil contempt
proceeding for failure to pay child support. Id. at 2520. In
doing so, the Court identified an exception to, but did not
generally eliminate, the due process right to counsel. See id.(holding that Turner’s due process rights were violated
because he received “neither counsel nor the benefit of
alternative procedures”). Turner reaffirmed that, when
determining whether due process requires appointment of
counsel, a court must consider the factors set forth in
Mathews v. Eldridge, 424 U.S. 319 (1976). See Turner, 131
S. Ct. at 2517-18. Those factors include (1) the nature of the
private interest affected, (2) the risk of an erroneous
deprivation of that interest without appointed counsel, and (3)
the nature and magnitude of any countervailing interests. Id.The Mathews factors suggest why it was reasonable to
assume that Gewin had a due process right to appointed
counsel:
6
First, as in Turner, the “private interest that [was]
affected” in Gewin’s contempt proceeding—the “loss of
personal liberty through imprisonment”—“argues strongly for
the right to counsel.” See id. at 2518 (internal quotation
marks omitted). But, unlike Turner, who was facing a
maximum term of imprisonment of up to a year, no statute
limited the period Gewin could be held, and he ended up
serving six years—an extraordinary period of civil contempt.
Second, “[g]iven the importance of the interest at stake, it
is obviously important to assure accurate decisionmaking”
with respect to Gewin’s ability to pay the restitution and fine,
see id., and counsel most likely would have improved the
accuracy of decisionmaking here. Here, as in Turner, it was
important to make an accurate determination of “the key
‘ability to pay’ question” that supports continued confinement
for civil contempt. Id.Third, the three subsidiary considerations that argued
against requiring the state to provide counsel in Turner’s civil
contempt proceeding point in the other direction here. Unlike
in Turner, the question at issue in Gewin’s contempt
proceeding was not “straightforward.” Compare id. at 2519.
As our opinion observes, Gewin was caught in a Catch-22.
Slip Op. at 17 n.2. Gewin very well may have spent the funds
identified in the court’s sentencing order. If so, he could have
come forward with that evidence to defend against civil
contempt, but in doing so he would have exposed himself to
criminal contempt or prosecution on another ground for
dissipating funds in violation of the court’s order. Id.Alternatively, if he avoided criminal jeopardy by declining to
present that evidence to the court, he would remain in
contempt, with no apparent end to his incarceration. The
hazards surrounding those choices underscore that Gewin’s
circumstances presented legal issues far more complex than
7
those characterized in Turner as simple enough that an
indigent could navigate them effectively on his own, aided
only by a system of simple forms and follow-up questioning.
See Turner, 131 S. Ct. at 2519; see also United States v.
Bobart Travel Agency, Inc., 699 F.2d 618, 619-20 (2d Cir.
1983) (“To guide a client between the Scylla of contempt and
the Charybdis of waiving his Fifth Amendment privilege
requires not only a lawyer but an astute one.”).
This case is also unlike Turner insofar as appointment of
counsel to Turner, who had refused in that case to pay child
support, would have unfairly and disproportionately
empowered him against the child’s mother, the unrepresented
custodial parent. The Court concluded that “[t]he needs of
such families play an important role in our analysis”;
appointing counsel to Turner would create an “asymmetry of
representation” that could make the proceedings “less fair
overall.” Turner, 131 S.Ct. at 2519. In this case, in contrast,
the only party opposing Gewin in the civil contempt
proceeding was the United States government, and providing
him counsel would have helped to level the playing field.
Finally, unlike in Turner, there is no contention here that
counsel was unnecessary because of any substitute procedural
safeguards that might be used instead of counsel to reduce the
risk of an erroneous deprivation of liberty. Compare id. at
2520.
Given Gewin’s apparent entitlement to appointed
counsel, our inquiry focuses on whether Gewin waived that
right. The majority’s opinion does an admirable job of sifting
through the record to ascertain that Gewin did in fact waive
his right to counsel. But had the trial judge followed best
practices in the first instance, our confirmation of Gewin’s
waiver would have been vastly simplified. Indeed, here, the
district court appears to have recognized what needed to be
8
done, yet for whatever reason did not go through those formal
steps. In the absence of an adequate colloquy on the record
reflecting knowing and intelligent waiver, the kind of whole-
record review that we conducted here will continue to be
necessary. Such review is not ideal, however, and can readily
be avoided.
Rather, the best practice is for the district court to hold a
formal colloquy on the record—similar to the standard
colloquy that is required in criminal cases—in order to inform
an indigent litigant of the right to counsel, if any, and inquire
whether the litigant wants the court to appoint counsel.
On-the-record colloquy for assignment or waiver of
counsel is the standard operating procedure in criminal trials.
See Faretta v. California, 422 U.S. 806, 835 (1975); Johnson
v. Zerbst, 304 U.S. 458, 465 (1938). In the context of the
Sixth Amendment right to counsel in criminal cases, the
Supreme Court explained that “[i]t is the solemn duty of a
federal judge before whom a defendant appears without
counsel to make a thorough inquiry and to take all steps
necessary to insure the fullest protection of this constitutional
right at every stage of the proceedings.” Von Moltke v.
Gillies, 332 U.S. 708, 722 (1948). Also in the context of the
Sixth Amendment right, our court has emphasized the
practical benefit of timely and explicit on-the-record inquiry:
“The most certain assurance” that the defendant is aware of
the dangers and disadvantages of self-representation “is by a
colloquy on the record between judge and defendant.” United
States v. Bailey, 675 F.2d 1292, 1300 (D.C. Cir. 1982). “It is
precisely because of the ambiguities that commonly
accompany purported waivers of counsel” that courts in
criminal cases “have generally required a ‘recorded colloquy’
between the defendant and the court, one in which the
accused is informed of his right to an attorney, his right to
9
self-representation, and the decided advantages of competent
legal representation.” United States v. Tompkins, 623 F.2d
824, 828 (2d Cir. 1980); see also Bailey, 675 F.2d at 1299-
1300.
The differences between criminal and civil proceedings,
and the distinct constitutional grounds for the right to counsel
in civil and criminal cases, do not change the fact that a
litigant’s knowing and intelligent waiver requires notice of the
right. See In re Gault, 387 U.S. 1, 41 (1967); Walker, 768
F.2d at 1185. And the practical benefits of an on-the-record
colloquy are not limited to the criminal setting.
The 2013 Benchbook for U.S. District Court Judges
accordingly recognizes that, although the bases of the right to
counsel in the criminal and civil context differ, where a right
exists, effective process for protecting it is quite analogous.
The Benchbook sets forth model “civil contempt procedures”
for judges to follow with uncounseled litigants. If the
potential contemnor “desires an attorney but cannot afford
one, [the court] must appoint counsel for him . . . unless
waived.” Fed. Judicial Ctr., Benchbook for U.S. District
Court Judges § 7.02, at 236 (6th ed. 2013). The process the
Benchbook recommends, by explicit cross-reference, is the
same as the process where right to counsel attaches in the
criminal context: If a defendant does not have an attorney,
the court should inform the defendant of his “constitutional
right,” if any, “to be represented by an attorney at every stage
of the proceedings” and tell him that if he “is unable to afford
an attorney, the court will appoint one without cost to him.”
Id. § 1.02, at 5 (citing 18 U.S.C. § 3006A).3 The Benchbook
3
Section 3006A is primarily concerned with providing appointed
counsel to defendants facing criminal charges, but it is not confined
to criminal defendants. See, e.g., 18 U.S.C. § 3006A(a)(1)(G)
(material witnesses). The statute states that representation shall be
10
instructs that, after providing the defendant with that
information, the court should ask the defendant if he or she
understands the right to an attorney, wishes and is able to
obtain counsel, or wants the court to appoint counsel. Id.
§ 1.02, at 6. If the defendant does not want counsel, the court
“must make clear on the record that the defendant is fully
aware of the hazards and disadvantages of self-
representation.” Id.
Any additional burden on a court that conducts a
colloquy on the record “is more than offset by avoidance of
lengthy appeals to determine whether the defendant’s [due
process right] has been violated.” See United States v.
Gordon, 829 F.2d 119, 125 (D.C. Cir. 1987). Because a
reviewing court will have the most certain assurances that a
defendant knowingly and intelligently waived his right to
counsel when that waiver is made on the record, after an
adequate colloquy between the judge and contemnor, district
courts are well advised to make such a record. Indeed, “a
brief intercession on the record of this kind” would have
effectively eliminated this appeal. Bailey, 675 F.2d at 1300.
Had the district court conducted a standard colloquy on the
right to counsel before holding Gewin in contempt and had he
then clearly waived the right on the record, it seems virtually
certain this appeal could have been dismissed as frivolous.
provided to any financially eligible individual when the individual
“faces loss of liberty in a case, and Federal law requires the
appointment of counsel.” Id. § 3006A(a)(1)(I). Civil contemnors
face loss of liberty, and, as noted above, the Due Process Clause in
some circumstances requires appointment of counsel.
11
* * *
A contempt proceeding by its nature deals with conflict
between an individual and a court. Gewin was a challenging
litigant. He promised to pay and then sent in a fake check; at
a later court appearance he “charged” the court $500,000 each
time the judge uttered his name, which he claimed offset his
debt to the court; he failed to timely appeal the order holding
him in contempt, concentrating instead on filing repeated,
unsuccessful habeas petitions directed at his criminal
sentence. It is often unclear on the cold record what Gewin’s
intentions were: He seemed at once grandiose and furtive,
manipulative and delusional, fraudulent and confused. But it
is perfectly clear that Gewin’s uncooperative conduct made
proceedings difficult for the district court. Things would have
been easier on the court, and Gewin’s rights and interests
would have been better served, had he been represented by
counsel.
People who should be represented nevertheless routinely
refuse counsel. Many suffer dire consequences. That is their
prerogative, as it was Gewin’s in this case. But it is the
courts’ obligation to present such grave choices as clearly as
possible. This record leaves nagging doubts whether any
right to counsel Gewin may have had was promptly honored.
There are few substitutes for routine use of pre-contempt
colloquies to protect litigants’ rights and autonomy and to
enable just and efficient judicial review.