United States v. Gewin

• Citation: 759 F.3d 72
• Decision Date: 20 October 2014
• Docket Number: No. 12–3097.,12–3097.
• Parties: UNITED STATES of America, Appellee v. Barry William GEWIN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

759 F.3d 72

UNITED STATES of America, Appellee

v.Barry William GEWIN, Appellant.

No. 12–3097.

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 2014.

Decided July 25, 2014.

Rehearing En Banc Denied Oct. 20, 2014.

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.

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 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 codefendants 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 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 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 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 controlover 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...