U.S. v. Mallory
| Decision Date | 31 October 2007 |
| Docket Number | Case No. 04-60315-CR. |
| Parties | UNITED STATES of America, Plaintiff, v. Kenneth Lance MALLORY, Defendant, In Re: Lee A. Cohn, Contemnor. |
| Court | U.S. District Court — Southern District of Florida |
Joanne Fine, United States Attorney's Office, Fort Lauderdale, FL, Plaintiff.
J. David Bogenschutz, Fort Lauderdale, FL, for Contemnor.
THIS MATTER is before the Court sua sponte. At a hearing on January 29, 2007, the Court announced its finding that criminal contempt, 18 U.S.C. § 401 (2006), is a Class A felony, and later put forth an Order setting forth much of its reasoning. See DE 111. The Contemnor Lee A. Cohn objected to the Court's finding and filed Memoranda in support of his position. DE Nos. 90, 104, 120, & 124. At sentencing held on July 9, 2007, the Court found that Cohn's behavior warranted a three-level enhancement for substantial interference with the administration of justice pursuant to United States Sentencing Guidelines § 2J1.2(B)(2); Contemnor also objected to that finding. At sentencing, Cohn renewed his objection to the Court's classification of criminal contempt as a Class A felony. For the benefit of the Parties and any reviewing court, the Court enters this Order to set forth its reasoning as to both the three-level enhancement and the classification of criminal contempt as a Class A felony.
While the legal issues herein involve Contemnor Lee A. Cohn (hereinafter "Cohn"), the above-styled cause commenced on December 16, 2004, with the filing of a one-count Indictment (DE 1) charging Defendant Kenneth Lance Mallory (hereinafter "Mallory") with possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On January 12, 2005, Cohn filed a Notice Of Permanent Appearance (DE 9) stating that he would be appearing as counsel for Mallory in these proceedings. Thereafter, he represented Mallory at his change of plea and sentencing hearings. Approximately five months after Judgment (DE 33) was entered against Mallory, Plaintiff United States of America (hereinafter the "Government") tiled a Notice To Court Regarding Status Of Defendant's Counsel (DE 36). In said Notice, the Government informed the Court that at the time. Cohn represented Mallory at the aforementioned hearings, he was not authorized to practice law in the State of Florida. See DE 36. The Court thereafter issued an Order To Show Cause (DE 81) pursuant to Federal Rule of Criminal Procedure 42(a) directing Cohn to appear and show cause as to why he should not be held in criminal contempt for the conduct set forth above.
Following the Court's Order To Show Cause, a number of hearings were held, including the aforementioned hearing on January 29, 2007, where the Court announced its finding that criminal contempt is a Class A felony. While Cohn never denied that he appeared before the Court without being licensed, he continuously contested the Court's finding that criminal contempt is a Class A felony. The Court granted Cohn leave to enter a plea of guilty and after sentencing remain free on bond pending his appeal, Prior to sentencing, Cohn notified the Court that he refunded to Defendant, Lee Mallory's family the fee he received for his representation of Mallory. At sentencing, the Government moved for several enhancements under the sentencing guidelines. After hearing argument and considering the governing caselaw, the Court found that Cohn's behavior warranted a three-level enhancement under the United States Sentencing Guidelines § 2J1.2(B)(2). Cohn objected to the enhancement.
Thereafter, taking full account of Cohn's actions and the statutory factors outlined in 18 U.S.C. § 3553, the Court sentenced Cohn to forty-five days of incarceration, with a five-year term of supervised release, and ordered that he perform four hundred hours, of community service. At the conclusion of the sentencing, the Court informed the Parties that it would fully set forth its reasoning in a written order as to the three-level enhancement and the Court's finding that criminal contempt is a Class A felony.
The Court notes that both § 2J1.2(b)(2) and § 2J1.3(b)(2) of the United States Sentencing Guidelines allow for an enhancement of three levels based on "substantial interference with the administration of justice." Application Note 1 for both sections defines the phrase as follows: "`Substantial interference with the administration of justice' includes a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources." U.S.S.G. § 2J1.2(b)(2), n. 1; § 2J1.3(b)(2), n. 1. In the instant action, the Court's finding centered on the phrase "unnecessary expenditure of substantial governmental or court resources." Id.
Caselaw interpreting the phrase as used in either section provides illumination into its meaning. See United States v. Weissman, 22 F.Supp.2d 187, 196 (S.D.N.Y. 1998), aff'd 195 F.3d 96 (2d Cir.1999) (). The Eleventh Circuit has not addressed the weight to be given Application Note 1; however, other circuits have found that "[s]ubstantial interference with justice requires proof of unnecessary expenditure of substantial government resources." United States v. Tackett, 193 F.3d 880, 885 (6th Cir.1999) (quotation omitted).
When imposing a three-level enhancement for causing substantial interference with the administration of justice for the "unnecessary expenditure of substantial governmental or court resources," § 2J1.2(b)(2), the Court must: (1) identify a particular expenditure of governmental resources, (2) which but for the defendant's conduct would not have been expended, and (3) that the expenditure was substantial in amount. Tackett, 193 F.3d at 887; see also United States v. Sinclair, 109 F.3d 1527, 1539-40 (10th Cir.1997) (). However, "[t]he government need not particularize a specific number of hours expended by government employees to sustain the application of section 2J1.3(b)(2)'s enhancement." United States v. Johnson, 485 F.3d 1264, 1271 n. 8 (11th Cfr.2007).
The Application Notes for §§ 2J1.2(b)(2) and 2J1.3(b)(2) do not define the term "substantial." Therefore, the Court will ascribe to the term its "ordinary or natural meaning." United States v. Zheng, 306. F.3d 1080, 1085 (11th Cir.2002) (quoting Nat'l Coal Ass'n v. Chater, 81 F.3d 1077, 1081 (11th Cir.1996) (per curiam)); see also Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) (). Black's Law Dictionary defines substantial as Black's Law Dictionary 1428 (6th ed.1990). In Webster's Third New International Dictionary substantial is defined as "(c) of substance, real, not imaginary or illusive." Webster's Third New International Dictionary 2280 (Merriam Webster 1981).
Federal cases have riot identified a particular method for determining whether the expenditure of government or court resources is "substantial." However, courts have found that the cost of interviewing and re-interviewing witnesses to ascertain the truth about a particular crime is substantial. See, e.g., United States v. Sinclair, 109 F.3d 1527, 1540 (10th Cir.1997); United States v. Atkin, 29 F.3d 267, 268 (7th Cir.1994); see also United States v. Leung, 360 F.3d 62, 67-68 (2d Cir.2004) (). Courts have also looked at the expenditure involved in the government's investigation of a defendant's interference with justice. See, e.g., United States v. Tankersley, 296 F.3d 620, 623 (7th Cir.2002); United States v. Butt, 955 F.2d 77, 88 (1st Cir.1992); United States v. Lueddeke, 908 F.2d 230, 234 (7th Cir.1990) (). Courts have also looked to the expenditure of precious judicial resources to determine if substantial resources were expended. See, e.g., United States v. Bradach, 949 F.2d 1461, 1463 (7th Cir.1991) ().
In the instant action, the Government established that the costs incurred by it and the Court as a result of Cohn's crime were substantial. See Transcript of Sentencing Held on July 9, 2007, pp. 6-12. Among the areas addressed by the Government was the cost of transporting Defendant Lee Mallory for re-sentencing from Kentucky to Florida. Id. p. 7. Further, the United States Marshall's Service incurred various costs incidental to Mallory's transportation from Miami where he was housed, to Ft. Lauderdale where he was re-sentenced. The Government also incurred the additional cost of investigating Cohn's actions and their impact upon Mallory's sentence. Id. p. 8. This included Cohn's failure to pursue a possible Rule 35 departure for. Mallory. Further, the Court was also forced to expend precious judicial resources by vacating Mallory's sentence, taking the time to entertain further pleadings in that matter, and finally re-sentencing him. Accordingly, the Court finds that Cohn's actions resulted in the unnecessary expenditure of substantial governmental and court resources, as opposed to a small or nominal sum as argued by Cohn at sentencing.
The issue of whether criminal contempt is a Class A...
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