In re Grogan
| Decision Date | 24 January 1997 |
| Docket Number | Crim. No. 3:96CR30-A. |
| Parties | In re William K. GROGAN. |
| Court | U.S. District Court — Eastern District of Virginia |
James Comey, Assistant U.S. Attorney, U.S. Attorney's Office, Richmond, VA, for U.S.
Upon application of the United States pursuant to Fed.R.Crim.P. 42(b), the Court, on November 5, 1996, ordered William K. Grogan to show cause why he should not be found guilty of criminal contempt under Title 18, United States Code, Section 401(1), and punished for that contempt by fine or imprisonment. The Order to Show Cause ("Show Cause Order II") charged Grogan with two separate counts of criminal contempt.1 For good cause shown, and upon agreement of the parties, Count One of Show Cause Order II was dismissed by Order dated January 16, 1997. The defendant urged dismissal of Count Two as well, but the Government, while candidly identifying what it thought to be difficulties in its proof, declined to join that request. The Court refused to dismiss Count Two, finding that there was sufficient evidence to support a conviction under 18 U.S.C. § 401(1).
The next day, January 17, 1997, the Government filed a Motion to Dismiss Order to Show Cause requesting dismissal of Count Two, for the reason that the Government considered the proof to be inadequate to support one element of that count. For the reasons set forth below, Count Two will not be dismissed, and the Government's motion is denied.
The allegedly contemptuous behavior which is the subject of Count Two of Show Cause Order II has its genesis in a criminal case brought by the United States against Alice Dean Van Dagenhardt. See United States v. Dagenhardt, Crim. No. 3:95cr88. An understanding of those proceedings is therefore important to resolution of the Government's motion.
On September 12, 1995, Dagenhardt was indicted for bank fraud (Count 1), use of an unauthorized access device (Counts 2 and 3) and use of a false Social Security number (Count 4). On March 12, 1996, Dagenhardt entered a plea of guilty to Count Three, one of the charges alleging use of an unauthorized access device. Sentencing was set for June 13, 1996.
On June 7, 1996, Grogan filed a Petition for Upward Departure From Sentencing Guidelines (the "Petition") purportedly on behalf of forty-one people who allegedly had been defrauded by Dagenhardt in transactions unrelated to those in the indictment. In filing that document, Grogan purported to act "as an officer of the court and as a citizen of the United States," whose "obligation" it was "to bring the following matters before the Court because I believe this information will persuade the Court that it should depart upward from the Defendant's Criminal History Category ... [because] [t]he Defendant's history of unpunished criminal activity is far greater than that of the typical criminal defendant with only two convictions." Petition at 1-2. In essence, the Petition filed by Grogan, which with its appendices exceeded 100 pages, charged that Dagenhardt, in various ways, had eluded just punishment for past fraudulent conduct and that this Court should remedy that circumstance by imposing a more severe sentence than was prescribed by the Sentencing Guidelines.2
On June 10, 1996, Dagenhardt's counsel objected to the filing of the Petition and requested additional time to respond to the charges made by Grogan. By Order entered on June 13, 1996, the Court ruled that the Petition would be considered and continued the sentencing to August 5, 1996 to afford Dagenhardt time to respond. Also, because the Petition contained numerous allegations which facially were unrelated to the charges in the indictment, Grogan was ordered to file a supplemental pleading relating each alleged act of criminal conduct in the Petition as relevant conduct to the offense of conviction (use of an unauthorized access device).
On June 24, 1996, Grogan filed the Supplemental Petition for Upward Departure from Sentencing Guidelines (which, with attachments, exceeded 100 pages). In that pleading, Grogan alleged that Dagenhardt had engaged in fraudulent activities for at least fourteen years, but had escaped just punishment and avoided civil liability to those she had harmed, many of whom were Grogan's clients.
On July 22, 1996, Dagenhardt responded to the Supplemental Petition. Her response outlined in detail Grogan's extensive efforts to involve himself in the underlying criminal charges reflected in the indictment, principally by insinuating himself into the Secret Service investigations which led to Dagenhardt's indictment in this case. Dagenhardt's response also highlighted the irrelevancy and error which pervaded the Petition and the Supplemental Petition. The Government filed its response to the Supplemental Petition wherein it largely agreed that the matters asserted by Grogan were either irrelevant or erroneous, or both.
On July 31, 1996, Grogan filed an unsolicited pleading purporting to clarify his view of matters. See Proffer Clarifying Facts In Dispute In Response of the United States. Like many of Grogan's other pleadings it was disjointed and inaccurate and, in Grogan's words, it took a "sarcastic and confrontational approach." See Id. at 26. And, like the other pleadings filed by Grogan, it reflected a personal vendetta against Dagenhardt more than an effort to bring relevant material to the attention of the Court.
The sentencing occurred on August 5, 1996. Of all the information submitted by Grogan, the Court considered only one factual assertion, involving an alleged credit card fraud on CitiCorp, as relevant conduct to the offense of conviction.
It is necessary now to return to June 7, 1996, when Grogan filed the original Petition. Therein, Grogan represented that he was authorized to file that Petition on behalf of 41 alleged victims of Dagenhardt's fraudulent financial activities. Attached to the Petition as Exhibit One was a list of 41 names, captioned "Victims of Alice Dagenhardt." The list included Annabelle Wrayton, John O'Toole, O'Toole's Restaurant (owned and operated by John O'Toole), and Leonardo's Pizza.
On July 22, 1996, Dagenhardt filed her response to the Petition and other sentencing issues. Attached thereto were the sworn affidavits of John O'Toole and Annabelle Wrayton, each of whom stated under oath that they had not authorized Grogan to file the Petition. Mrs. Wrayton also stated that she had not been a victim of fraud by Dagenhardt. At the sentencing hearing on August 5, Dagenhardt presented the additional affidavit of George Tame, the owner of Leonardo's Pizza, who stated that he had not authorized Grogan to represent either himself or Leonardo's Pizza in filing the Petition, and, in fact, that he had previously informed Grogan that he (Tame) did not wish to speak to Grogan about Dagenhardt and did not wish to take any action against her.
In response to both the evidence submitted by Dagenhardt, which seriously called into question some of the representations made by Grogan in the Petition, and the Court's expression of concern over Grogan's alleged misconduct, Grogan, who was in attendance at the August 5 sentencing hearing, rose and asked to address the Court. That request was declined and Grogan was informed on the record that an order to show cause for contempt would be issued against him shortly.
By order dated August 6, 1996, the Court issued Show Cause Order I which directed Grogan to "show cause why he should not be sanctioned for representing to this Court that John O'Toole, Annabelle Wrayton, and George Tame, owner of Leonardo's Pizza, authorized him to file on their behalf a Petition for Upward Departure in the matter of the sentencing of Alice Dean Van Dagenhardt." The hearing on Show Cause Order I was set for August 30, 1996.
On August 22, 1996, Grogan filed a Response to Show Cause Order, wherein, Grogan stated:
Grogan is grateful for the Court's issuance of this SHOW CAUSE ORDER, which gives him the opportunity to put on the record his refutation of the aspersions he feels have been cast on his reputation in Defense Counsel's allegations that Grogan has been untruthful to this Honorable Court. Fully believing that there is no possession so precious as one's reputation, Grogan, at the Sentencing Hearing cited herein requested of Assistant United States Attorney Evans that he be allowed to speak briefly to the accusations made against him by Defense Counsel, or, failing that, that a SHOW CAUSE ORDER be issued to which he might respond in order to defend his honor. (See Exhibit A, a copy of a note passed between Grogan and AUSA Evans.)
Brief of William K. Grogan (Petitioner) In Response To Show Cause Order ("Grogan Response Brief") at 2 (emphasis added). Attached to Grogan's response as Exhibit A was a photocopy of a handwritten note purportedly passed by Grogan to the Assistant United States Attorney Joan Evans during the August 5 sentencing hearing. Nearly the entire space on the note is occupied by large handwriting which reads as follows:
Joan — will you agree to allow me to make a short statement on the record re: misreps to defend my integrity 30 seconds — please
Grogan Response Brief, Exhibit A (original emphasis) Both the Government and Grogan agree that this statement was written by Grogan and that a note with that statement on it was handed to Evans during the Dagenhardt sentencing hearing. Also appearing on the face of the note, written perpendicular to Grogan's request, is the response, "I'm sorry — NO." Id. The parties agree that this was written by AUSA Evans in response to Grogan's request and that Evans then handed the note back to Grogan.
At issue here is the following statement which also appears on the photocopy of the note submitted to the Court as Exhibit A to Grogan's Response to Show Cause Order I:
If not could you ask Ct. to issue Show Cause so...
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