U.S. v. Cefalu

• Decision Date: 04 June 1996
• Docket Number: Nos. 787,890,D,s. 787
• Citation: 85 F.3d 964
• Parties: UNITED STATES of America, Appellee-Cross-Appellant, v. Domenico CEFALU, Appellant-Cross-Appellee. ockets 95-1225, 95-1269.
• Court: U.S. Court of Appeals — Second Circuit

Page 964

85 F.3d 964

UNITED STATES of America, Appellee-Cross-Appellant, v. Domenico CEFALU, Appellant-Cross-Appellee.

Nos. 787, 890, Dockets 95-1225, 95-1269.

United States Court of Appeals Second Circuit.

Argued Dec. 22, 1995.

Decided June 4, 1996.

Joseph W. Ryan, Jr., Uniondale, NY (M. Elisabeth Bergeron, Uniondale, NY, on the brief), for Appellant-Cross-Appellee.

Andrew Weissmann, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney, Eastern District of New York, David C. James, Assistant United States Attorney, Brooklyn, NY, of counsel), for Appellee-Cross-Appellant.

Before: KEARSE, MAHONEY and PARKER, Circuit Judges.

PARKER, Circuit Judge:

I.

BACKGROUND

Defendant Cefalu was convicted and sentenced for criminal contempt in the United States District Court for the Eastern District of New York, Judge Edward R. Korman. After several lengthy sentencing hearings, the court sentenced defendant to thirty-three months imprisonment pursuant to 18 U.S.C. § 3553(b). Both the defendant and the government appeal the sentence. Because we find no error, we affirm the district court.

A grand jury called defendant to appear as a witness in an investigation of Patsy Conte, a captain in the Gambino family. Defendant was granted immunity and he offered testimony before the grand jury; however, at a certain point he refused to answer any further questions. Defendant was held in civil contempt by the district court, Judge Reena Raggi. He served eighteen months, the maximum time, in jail for civil contempt and was released on February 6, 1994.

Meanwhile, on December 23, 1993, he was called to testify in the Conte trial. ¹ Conte was charged with conspiracy to distribute heroin. Defendant was again granted immunity, refused to testify and was held in civil contempt. His confinement for this civil contempt lapsed on January 4, 1994, when the Conte trial concluded. The court declared a mistrial because of a hung jury.

The grand jury returned an indictment charging defendant with criminal contempt for his refusal to testify during the Conte trial. On February 6, 1994, after completing his civil contempt sentence, defendant was arraigned on the criminal contempt indictment. He waived his right to a jury trial. At a bench trial before Judge Korman he offered no evidence in his own defense and was found guilty of criminal contempt in violation of 18 U.S.C. § 401.

II.

DISCUSSION

In this case, we review a sentencing judge's efforts to wind his way through the Sentencing Guidelines and the relevant statutory provisions. Judge Korman expressed some frustration with the fact that there is no clear guideline provision covering one of the most standard forms of contempt: refusal to testify in violation of a valid court order. While we appreciate the court's concern, we also understand the Commission's hesitancy to prescribe a particular sentencing range for a crime that is as highly variable and context specific as contempt. Given the vague sentencing provision for contempt, Judge Korman did a commendable job of working through the various relevant provisions, ultimately fashioning a rational, appropriate sentence for the defendant.

A. The Contempt Guideline

The Contempt guideline, § 2J1.1 of the United States Sentencing Guidelines ("USSG"), directs the district court to apply USSG § 2X5.1 when imposing a sentence for criminal contempt. In the absence of a sufficiently analogous guideline, Section 2X5.1 references 18 U.S.C. § 3553(b). Explaining the lack of a specific sentencing range for contempt, the Commission stated:

Because misconduct constituting contempt varies significantly and the nature of the contemptuous conduct, the circumstances under which the contempt was committed, the effect the misconduct had on the administration of justice, and the need to vindicate the authority of the court are highly context-dependent, the Commission has not provided a specific guideline for this offense.

USSG § 2J1.1, comment (n. 1). Section 2X5.1 states that the court is to apply the most analogous offense guideline, or if there is no sufficiently analogous guideline, to proceed under the provisions of 18 U.S.C. § 3553(b), applying the guidelines and policy statements to the extent they are applicable. The statute provides:

In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in [18 U.S.C. § 3553] subsection (a)(2).... [T]he court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.

18 U.S.C. § 3553(b)(1994). ² The legislative history of § 3553(b) explains that "[t]his language is necessary to provide for the situation where there may be no guideline." H.R.Rep. No. 797, 99th Cong., 2d Sess. 19 (1986), reprinted in 1986 U.S.C.C.A.N. 6138, 6142. Thus, in cases in which the crime does not fit neatly within any of the guidelines, the statutory provision gives the court some direction in sentencing. In such cases, the sentencing judge has considerable discretion to fashion an appropriate sentence for the crime.

The structure of the guidelines for contempt and the Commission's clear recognition that the crime is a highly varied one suggest that in certain circumstances there will be no applicable sentencing guideline for contempt. See United States v. Underwood, 880 F.2d 612, 619 (1st Cir.1989) (holding that there is no applicable sentencing guideline for contempt). ³ A sentence imposed for an offense for which there is no applicable sentencing guideline will only be reversed if it is plainly unreasonable. 18 U.S.C. § 3742(e)(4) (1994). Thus, we must determine first whether there is a sufficiently analogous guideline, and if not, whether the sentence is plainly unreasonable.

B. Other Potentially Applicable Guidelines

Cefalu maintains that USSG § 2J1.5, the guideline for Failure to Appear by a Material Witness, is the most analogous guideline. This provision derives from the statute concerning people released on bail who wilfully fail to appear in court. 18 U.S.C. § 3146(a) (1994). Judge Korman found that the Failure to Appear guideline was not sufficiently analogous because it did not address the seriousness of the crime being prosecuted in the Conte case. Judge Korman went on to determine that Cefalu acted in bad faith because he sat in open court and refused to obey a lawful order of the court.

In arguing that Failure to Appear by a Material Witness is the most analogous guideline, Cefalu relies primarily on United States v. Underwood, 880 F.2d 612 (1st Cir.1989), in which the court held that a three year sentence imposed by the district court for refusal to testify was plainly unreasonable, and that a sentence similar to that for Failure to Appear by a Material Witness, § 2J1.5, was more appropriate. However, Underwood is easily distinguished from this case because in Underwood the trial court found that the defendant had acted on a good faith belief that there was a legal basis for refusing to answer, whereas in this case the court found that the defendant acted in bad faith. This court has previously refused to follow Underwood in a contempt case in which the district court found that the defendant intended to obstruct justice. United States v. Remini, 967 F.2d 754, 760 (2d Cir.1992). Given the finding that Cefalu intended to obstruct justice, it was not error for the court to find that the Failure to Appear by a Material Witness guideline was not sufficiently analogous to be useful in this case.

The government argues, on the other hand, that because the court found that Cefalu intended to obstruct justice, the most analogous guideline is § 2J1.2, which corresponds to Obstruction of Justice. Judge Korman provided several reasons for rejecting the Obstruction of Justice guideline. First, he explained that although he found an intent to obstruct justice, he did not believe that the Obstruction of Justice Guideline was sufficiently analogous because the examples provided in the Obstruction guideline deal with affirmative acts of wrongdoing, indicating that something more than the mere failure to answer a question may be required. ⁴ He thought it was telling that although the form of contempt at issue is one of the most common forms of contempt, none of the examples provided in the Obstruction of Justice guideline mention anything about simple failure to answer questions. In addition, Judge Korman noted that although the Obstruction guideline covers a wide range of behavior, it does not differentiate in terms of the punishment prescribed. The judge thought that this lack of flexibility was particularly problematic in this case because Cefalu would have received the same punishment under § 2J1.2 as if he had committed a far more serious form of obstruction. Finally, Judge Korman had doubts as to whether Cefalu's behavior amounted to substantial interference with the administration of justice. For each of these reasons Judge Korman did not think the Obstruction of Justice Guideline was sufficiently analogous.

The government argues that under Remini, Cefalu must be sentenced under the Obstruction of Justice Guideline because he committed criminal contempt with an intent to obstruct justice. At the outset, we find that Remini is distinguishable on its facts. The evidence of intent to substantially interfere with the administration of justice in order to help the defendants on trial was far greater in Remini than in the instant case. In Remini, the court relied on a taped phone conversation in which John Gotti, Remini's boss, told a third party that he had instructed his lawyers to "get Fat Georgie's [Remini's] cell ready. And nobody is taking the stand." Remini, 967 F.2d at 756 (brackets in original). The district court in Remini...