United States v. Barry Gewin
759 F.3d 72
D.C. Cir.2014Background
- Gewin was convicted of securities and wire fraud and sentenced in 2005 to 108 months imprisonment, $1,975,786 restitution (jointly and severally), and a $500,000 fine; the court found approximately $651,541.82 available to satisfy payment and ordered turnover of specified accounts.
- Gewin paid only $1,325; after submitting a fictitious "International Bill of Exchange," the government sought civil contempt and the district court held Gewin in civil contempt in September 2007, ordering incarceration until he paid the court-ordered amount.
- Gewin did not appeal the 2007 contempt order; he intermittently asserted inability to pay and filed collateral attacks over the next years but provided little documentary proof of present inability to comply.
- In 2011 the court appointed the Federal Public Defender as advisory counsel; Gewin declined full representation and continued to litigate pro se in 2012, asserting inability to pay and lack of control over his wife’s accounts.
- On November 6, 2012 the district court found Gewin failed to show present inability to comply and continued the contempt; Gewin appealed that 2012 order (but not the 2007 order). The district court later terminated the contempt in 2013 after the government concluded it no longer served coercive purpose.
Issues
| Issue | Plaintiff's Argument (Gewin) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Jurisdiction to review 2007 contempt order | Court should review 2007 errors because 2012 order is tied to 2007 proceeding and Gewin lacked counsel in 2007 | 2007 contempt order was final and Gewin failed to timely appeal; 2012 appeal cannot resurrect untimely claims | Dismissed portion challenging 2007 order for lack of jurisdiction (timeliness required) |
| Due process right to counsel in 2012 proceedings | Gewin argues Fifth Amendment required appointment of counsel and that absence violated due process | Govt. argues forfeiture and that Gewin waived any right by declining appointed counsel when offered | Held Gewin waived any due-process right to counsel in 2012 (court repeatedly offered/appointed counsel and Gewin declined) |
| Present inability-to-pay defense at contempt hearing | Gewin contends he lacked present access to funds (esp. wife’s accounts) and thus cannot be held in contempt | Govt. relies on district court’s 2005 findings that Gewin controlled those accounts; 2012 burden is to prove changed/ present inability | Held court properly refused to reopen 2005 factual findings; Gewin did not present adequate new evidence of present inability to access funds |
| Whether civil contempt became punitive (duration) or court should have used statutory procedures | Gewin argues long confinement (six years added) transformed coercive contempt into punitive punishment and/or required statutory processes (18 U.S.C. §§ 3613A/3615) | Govt. asserts continued confinement remained coercive until terminated and statute does not preempt civil contempt; procedural objections forfeited | Held claims forfeited or without merit; no showing that contempt had become punitive as of Nov. 2012 and statutory arguments were not prejudicial |
Key Cases Cited
- Bowles v. Russell, 551 U.S. 205 (2007) (timely filing of appeal is jurisdictional; courts cannot create equitable exceptions to jurisdictional time limits)
- United States v. Gewin, 471 F.3d 197 (D.C. Cir. 2006) (panel decision addressing Gewin’s waiver of trial counsel and related issues)
- United States v. Rylander, 460 U.S. 752 (1983) (present inability to comply is a complete defense to civil contempt)
- Maggio v. Zeitz, 333 U.S. 56 (1948) (contempt proceedings do not permit relitigation of the original controversy; contemnor may present evidence of changed circumstances)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error review framework)
- Salazar ex rel. Salazar v. District of Columbia, 602 F.3d 431 (D.C. Cir. 2010) (forfeiture and preservation of issues on appeal)
- Turner v. Rogers, 131 S. Ct. 2507 (2011) (Mathews balancing governs whether due process requires appointment of counsel in civil contempt cases threatening incarceration)