United States v. Ogoke
| Decision Date | 22 June 2017 |
| Docket Number | No. 16-1297,16-1297 |
| Citation | 860 F.3d 924 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Chinyere Alex OGOKE, Defendant. Appeal of: Michael I. Leonard, Attorney |
| Court | U.S. Court of Appeals — Seventh Circuit |
860 F.3d 924
UNITED STATES of America, Plaintiff–Appellee,
v.
Chinyere Alex OGOKE, Defendant.
Appeal of: Michael I. Leonard, Attorney
No. 16-1297
United States Court of Appeals, Seventh Circuit.
Argued March 27, 2017
Decided June 22, 2017
Debra Riggs Bonamici, Attorney, Diane MacArthur, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.
Thomas Anthony Durkin, Attorney, Durkin & Roberts, Christopher Grohman, Attorney, Duane Morris LLP, Chicago, IL, for Appellant.
Michael I. Leonard, Attorney, Leonard Meyer LLP, Chicago, IL, for Defendant.
Bradley G. Hubbard, Attorney, Ashley E. Johnson, Dallas, TX, Katie M. Magallanes, Attorney, Irvine, CA, Gibson Dunn, for Amicus Curiae Ashley E. Johnson.
Before Bauer and Easterbrook, Circuit Judges, and DeGuilio,* District Judge.
Bauer, Circuit Judge.
Attorney Michael Leonard was convicted of contempt under 18 U.S.C. §§ 401(1) and (3) after he made a closing argument, in violation of the district court's written order, regarding a witness who did not testify at trial. He appeals his conviction on both substantive and procedural grounds. We affirm.
I. BACKGROUND
On February 26, 2013, Leonard was appointed under the Criminal Justice Act to defend Chinyere Ogoke, who had been charged with two counts of wire fraud. On May 6, 2015, Ogoke's codefendant Matthew Okusanya entered into a cooperation plea agreement with the government. Ogoke proceeded to trial on July 13, 2015, represented by Leonard and pro bono co-counsel, Robert Robertson.
On May 4, 2015, the government filed a motion in limine seeking to prohibit the defense from introducing any evidence or making any argument related to potential witnesses not called to testify at trial. On May 13, 2015, Judge Ronald Guzmán entered an order stating that "unless there is a showing that the missing witness is peculiarly within the government's control, either physically or in a pragmatic sense, Defendant is precluded from commenting on the government's failure to call any witness." The order further stated that if such a showing were made, counsel must petition the court before making any comment or argument regarding the missing witness.
It was the government's theory at trial that Ogoke and Okusanya were coconspirators in a fraud scheme. Okusanya appeared on the government's witness list, but the government decided not to call him during trial. During his closing argument, Leonard said the following:
Now, according to the government, Mr. Okusanya was intimately involved in the scam, right? Matthew Okusanya was intimately involved in the scam. He did all sorts of things.... [B]ut ask yourselves about the testimony you heard from here in the case, which is your evidence. Matthew Okusanya didn't say one word about Alex Ogoke. Wouldn't you think if Matthew Okusanya was a grand schemer with Alex Ogoke that he would have some evidence, some? ... [H]e's the guy. Do you remember? He's working in cahoots, according to the government, with Alex Ogoke. Not one word from Matthew Okusanya during the trial about Alex Ogoke. That's strange. Now, the government could get back up and say: Mr. Leonard could call Mr. Okusanya as a witness. Remember the instruction. We don't have to raise a finger. They have to prove Alex Ogoke guilty beyond a reasonable doubt. We don't have to call witnesses to say they won't say something. If the government had something from Okusanya to support the idea that this guy did it, you would have heard from the grand schemer, Mr. Okusanya.
At this point, the government objected; Judge Guzmán sustained the objection and struck that portion of the argument. After closing arguments, Judge Guzmán adjourned the trial for the weekend.
The following Monday, before the jury returned a verdict, Judge Guzmán issued an order to show cause as to why Leonard should not be held in contempt for violating the court's ruling on missing witness arguments. The same day, the jury found Ogoke not guilty on all counts.
The government sent a letter to the court seeking to recuse itself from the contempt proceeding "because this office has other pending matters with Mr. Leonard and the contempt proceeding arises in a trial that our office handled with Mr. Leonard that resulted in an acquittal."
Based on those conflicts, the government asked that the court appoint another attorney to prosecute the contempt charge.
On August 26, 2016, Judge Guzmán held a hearing on the order to show cause. Leonard was represented by counsel, but no prosecutor was appointed. When the hearing began, Judge Guzmán asked if Leonard had any questions about the charges; his counsel responded that he did not. Judge Guzmán then asked how Leonard wished to proceed. Leonard's counsel explained that he would like to make a brief opening remark and then call Leonard and Robertson to testify. Judge Guzmán then took judicial notice of the entire record of proceedings of the case, and Leonard's counsel began presenting his defense.
Leonard testified that, after initially reviewing the order on missing witnesses when it was issued, he failed to review it again during the trial or prior to his closing argument. He stated that, during his closing, he had not realized he violated the ruling, but later acknowledged that he had made a "huge mistake." He testified that the mistake was unintentional and that he did not willfully violate the order. Robertson testified that the issue of the missing witness ruling did not come up while he and Leonard were preparing for closing arguments. He stated that if he had realized the argument regarding Okusanya would have violated the court's ruling, he would not have allowed his trial partner to make it. Leonard's counsel then gave a brief summary of the testimony and Leonard's position, and the court adjourned the hearing.
On September 17, 2015, Judge Guzmán issued a written order holding Leonard in contempt and ordering him to pay a $300 fine. He noted that Leonard was represented by counsel at the hearing, "who was afforded an opportunity to present evidence and argument in any form or manner he wished." Judge Guzmán found incredible Leonard's argument that he forgot about the order and that his violation was unintentional. That finding was based on Leonard's extensive experience as a defense attorney; a discussion between Leonard and Judge Guzmán at the pretrial conference about the government's missing witness motion in limine ; and a specific line of cross-examination that Judge Guzmán believed Leonard used to lay the groundwork for his closing argument. Judge Guzmán held, therefore, that Leonard's conduct was intentional and found him in contempt under 18 U.S.C. §§ 401(1) and (3).
On September 25, 2015, Leonard moved to stay the contempt order while his new counsel evaluated arguments for reconsideration or appeal. Judge Guzmán granted the motion, extending the time to file a motion for reconsideration or a notice of appeal until October 20, 2015. Leonard filed a motion to vacate the order on that date, arguing that the court failed to follow the correct procedures under Federal Rule of Criminal Procedure 42 ; that he was not given proper notice of the specific conduct in question and the specific evidence to be used against him; and that the evidence was insufficient to support his conviction.
Judge Guzmán denied Leonard's motion to vacate on February 4, 2016. On February 12, 2016, Leonard filed a notice of appeal, seeking review of both the contempt order and the denial of his motion to vacate. Due to the government's recusal, we appointed counsel to act as amicus curiae and defend the district court's orders on appeal.
II. DISCUSSION
A. Jurisdiction and Timeliness of Appeal
On appeal, Leonard raises a number of challenges to both the original contempt
order and the denial of his motion to vacate. He filed his notice of appeal, however, well after the 14–day deadline from the entry of the original contempt order. Thus, as an initial matter, we must determine whether we have jurisdiction to review both orders, or whether our review is limited to the denial of the motion to vacate.
First, we note that the time limit for filing an appeal in a criminal case, while mandatory, is not jurisdictional. United States v. Rollins , 607 F.3d 500, 501 (7th Cir. 2010). Moreover, "a motion for reconsideration presenting a substantive challenge to the decision ... makes a district judge's order non-final and postpones the time for appeal until entry of the order on that motion." Id.
Here, Leonard's filings occurred within the appropriate time periods and ultimately presented a substantive challenge to the initial order, such that the decision on that order was not final until the court denied Leonard's motion to vacate. Leonard moved to stay the contempt order eight days after it was issued. The court granted that motion and extended the time in which Leonard could file a motion for reconsideration or a notice of appeal. Leonard also met that deadline with...
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