United States v. Donziger, 19-CR-561 (LAP)

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE
• Parties: UNITED STATES OF AMERICA, v. STEVEN DONZIGER, Defendant.
• Docket Number: 19-CR-561 (LAP),11-CV-691 (LAP)
• Decision Date: 03 September 2020

UNITED STATES OF AMERICA,
v.
STEVEN DONZIGER, Defendant.

19-CR-561 (LAP)
11-CV-691 (LAP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 3, 2020

ORDER

LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE:

Before the Court is Mr. Donziger's motion for a jury trial. (Dkt. no. 143.) For the reasons set forth below, the motion is DENIED, and Mr. Donziger's trial will be by the Court.

I. Background¹

This is not Mr. Donziger's first request for a jury trial. On February 27, 2020, he filed an omnibus pretrial motion in which he asked the Court to empanel a jury if a judge from the Southern District of New York were to preside over his case. (Dkt. no. 60 at 16-17.) In an order dated May 7, 2020, the Court denied that motion, reasoning as follows:

[Mr. Donziger] does not dispute . . . that contempt defendants charged under 18 U.S.C. § 401 are not entitled to a jury trial when the possible punishment does not exceed six-months' incarceration or a $5,000 fine. There is no reason to depart from that rule here. If the Court concludes before trial that, in the event of a conviction, it would not impose a

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sentence above the six-month or $5,000 thresholds, Mr. Donziger will receive a bench trial. Mr. Donziger's request for a jury trial is therefore denied subject to renewal pending the Court's determination of the potential sentencing and fine range.

(Dkt. no. 68 at 9-10 (citations omitted).)

Following entry of that order, the Court invited the parties to address a number of open issues, including "whether they wish[ed] to be heard further about the potential sentence and fine if Mr. Donziger is convicted," as that issue would bear on whether Mr. Donziger was entitled to a jury trial. (See dkt. no. 69.) Defense counsel submitted a response asking "that the Court advise Mr. Donziger of the maximum sentence and fine that he faces" and reiterating "Mr. Donziger's view that he is entitled to a jury . . . even if the maximum possible sentence is six months." (Dkt. no. 73 at 1.)

On May 18, 2020, the Court held a pretrial conference at which it ruled that Mr. Donziger's possible sentence would not exceed six-months' imprisonment or a $5,000 fine and that, given the sentencing cap, Mr. Donziger would receive a bench trial:

[T]he Court has reviewed the parties' submissions on the topic of possible punishment, and although 18, U.S.C. Section 401 does not prescribe any maximum penalty, a review of the cases, particularly United States v. Cutler, 796 F. Supp. 710 (E.D.N.Y. 1992), persuades the Court that, if convicted, [Mr. Donziger] should be sentenced to no more than six months' imprisonment or a $5,000 fine. Accordingly, trial will be by the Court.

(Dkt. no. 87 at 5-6.)

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Mr. Donziger never moved for reconsideration of that order and never signaled that he planned to challenge the Court's bench trial ruling. Indeed, with the exception of the instant motion, all of Mr. Donziger's submissions have treated the bench vs. jury trial issue as settled. (See, e.g., dkt. no. 110 at 1 (opposing the Government's motion in limine on grounds that such motions "are primarily designed to prevent the jury from hearing prejudicial evidence or argument," a "consideration [that] does not exist here" (emphasis added)).) Nevertheless, Mr. Donziger has filed the motion for a jury trial now before the Court.

II. Discussion

Mr. Donziger's motion raises two arguments. First, he contends that he has a statutory right to a jury trial under 18 U.S.C. §§ 402 and 3691 because the accusations in Counts I and II of the charging instrument purportedly constitute obstruction of justice in violation of 18 U.S.C. § 1503. (Dkt. nos. 143 at 6-7 & 160 at 4-11.) Second, he contends that the Constitution guarantees him a jury trial because the charges against him cannot properly be classified as "petty" offenses. (Dkt. nos. 143 at 7-6 & 160 at 12-15.) Both arguments fail.

a. Jury Trial Under 18 U.S.C. §§ 402 and 3691

Mr. Donziger's first argument relies on 18 U.S.C. §§ 402 and 3691, which operate in tandem to give contempt defendants

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the right to a jury trial when their allegedly contemptuous conduct also "constitute[s]" an independent criminal offense. 18 U.S.C. §§ 402, 3691;² see also, e.g., United States v. Pyle, 518 F. Supp. 139, 146 (E.D. Pa. 1981) ("[Sections] 402 and 3691 . . . creat[e] a right to a jury trial in favor of a person charged with criminal contempt . . . where the conduct constituting the contempt charged also happens to constitute a federal or state criminal offense.") Mr. Donziger argues that

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§§ 403 and 3691 give him the right to a jury trial because the "alleged conduct underlying Counts I and II of [the] contempt charges 'constitute[s]' criminal obstruction of justice." (See dkt. nos. 143-1 at 6, 160 at 5.) The Court disagrees.

The federal obstruction of justice statute, 18 U.S.C. § 1503, prohibits "endeavor[ing]" to "influence[], obstruct[], or impede[] the due administration of justice." 18 U.S.C. § 1503; see also United States v. Rosner, 352 F. Supp. 915, 918 (S.D.N.Y. 1972) (stating that § 1503 is "designed to meet any corrupt conduct in an endeavor to obstruct or interfere with the due administration of justice" (quoting United States v. Solow, 138 F. Supp. 812 (S.D.N.Y. 1956)). To convict for obstruction of justice under § 1503, the Government must make a mens rea showing "that the defendant corruptly intended to impede the administration of [the] judicial proceeding." United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006) (quoting United States v. Fassnacht, 332 F.3 440, 447 (7th Cir. 2003)).

Here, the alleged conduct underlying Counts I and II does not violate 18 U.S.C. § 1503 because, at a minimum, it does not satisfy the mens rea requirement. Those counts accuse Mr. Donziger of "knowingly and willfully" failing to comply with court orders, not of "corruptly intending" to obstruct or impede the judicial proceeding. (See dkt. no. 1 at ¶¶ 1-6.) The Court acknowledges that when a party refuses to follow a court order,

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he or she is arguably gumming up the smooth administration of justice to one degree or another. That assessment is perhaps reflected in some of the statements Judge Kaplan made about Mr. Donziger's alleged contempts, including that Mr. Donziger was "acting to 'prevent enforcement of...