United States v. Chinyere Alex Ogoke
2017 U.S. App. LEXIS 11118
| 7th Cir. | 2017Background
- Michael Leonard, defense counsel for Chinyere Ogoke, was subject to a district-court order forbidding argument about uncalled witnesses unless the missing witness was peculiarly within the government's control. The order required a court filing before such argument.
- At trial the government listed co-defendant Matthew Okusanya as a potential witness but did not call him; during closing Leonard argued an adverse inference from the government’s failure to call Okusanya. The court sustained the government’s objection and struck the remarks.
- The judge issued an order to show cause before the jury returned a verdict; the jury then acquitted Ogoke. The U.S. Attorney recused from prosecuting the contempt matter; no independent prosecutor was appointed.
- The judge held a hearing (took judicial notice of the trial record) where Leonard and co-counsel testified; the judge found Leonard’s explanation—that he forgot the order—not credible and found him in criminal contempt under 18 U.S.C. §§ 401(1) and (3), fining him $300.
- Leonard moved to vacate arguing insufficient evidence, Rule 42 procedural defects (failure to follow subsection (a) and to appoint a prosecutor), and inadequate notice; the motion was denied and Leonard appealed.
Issues
| Issue | Plaintiff's Argument (Leonard) | Defendant's Argument (Government / Court) | Held |
|---|---|---|---|
| Sufficiency of evidence for willful contempt under § 401(3) | Leonard: Violation was unintentional (forgot the order); insufficient evidence of willfulness | Judge: Prior pretrial discussion, Leonard’s experience, and trial questioning showed intent; credibility determination supports willfulness | Affirmed: Evidence sufficient to support willful disobedience under § 401(3) |
| Whether conduct also met § 401(1) obstruction standard | Leonard: Even if intentional, conduct did not objectively obstruct administration of justice | Judge/Gov: conviction sustained on § 401(3) ground so § 401(1) need not be resolved | Affirmed on § 401(3); § 401(1) not addressed further |
| Proper Rule 42 procedure (summary punishment under 42(b) vs. formal prosecution under 42(a)) | Leonard: Court should have used Rule 42(a) because no compelling need for immediate remedy and because the court later held a hearing it must have appointed a prosecutor | Court: Contempt occurred in judge’s presence; Rule 42(b) applies; granting a hearing did not obligate switching to 42(a) or appointing a prosecutor | Affirmed: Rule 42(b) applicable; judge acted within discretion and could provide additional process without invoking 42(a) |
| Due process / notice of evidence relied upon | Leonard: Order to show cause did not specify reliance on pretrial transcript and cross-examination, denying adequate notice to prepare | Court: Under 42(b) no detailed notice required; the show-cause order did state essential facts; Leonard knew intent was central and had opportunity to be heard | Affirmed: Notice adequate and any concern remedied in motion to vacate hearing |
Key Cases Cited
- United States v. Rollins, 607 F.3d 500 (7th Cir.) (timeliness rules for criminal appeals are mandatory but not jurisdictional)
- United States v. Salinas, 763 F.3d 869 (7th Cir.) (standard for reviewing sufficiency of evidence under Jackson)
- Jackson v. Virginia, 443 U.S. 307 (Sup. Ct.) (benchmark for sufficiency-of-evidence review)
- United States v. Galati, 230 F.3d 254 (7th Cir.) (deference where record presents reasonable basis for conviction)
- United States v. Griffin, 84 F.3d 820 (7th Cir.) (elements of criminal contempt and deference to credibility findings)
- Oxman v. WLS-TV, 12 F.3d 652 (7th Cir.) (missing-witness adverse-inference principles)
- United States v. Moschiano, 695 F.2d 236 (7th Cir.) (limitations on resort to summary contempt and need for compelling reason)
- Sacher v. United States, 343 U.S. 1 (Sup. Ct.) (judge may defer summary contempt punishment until trial completion without losing authority)
- United States v. Lowery, 733 F.2d 441 (7th Cir.) (judge may provide extra process while using Rule 42(b))
- United States v. Ray, 683 F.2d 1116 (7th Cir.) (requirements for notice to satisfy due process in contempt proceedings)