In a recent federal court ruling, Federal District Judge David Nuffer denied an order to show cause against several Assistant United States Attorneys (“AUSA”). In United States v. Zander, Case No. 2:10-cr-1088-DN, the defendant moved for an order to show cause against several AUSA, alleging that the prosecutors should be held in criminal contempt for: “(1) violating a court order requiring disclosure of 404(b) evidence, and (2) including false statements of material fact in two of their briefs.”
Zander’s Convictions Affirmed, Remanded on Sentencing and Restitution Issues
Zander’s case was convicted of mail fraud, wire fraud, money laundering, and willful failure to file federal tax returns in early 2013. In November 2013, Zander was sentenced to sixty-eight months in prison and was ordered to pay $202,543.92 in restitution to the Paiute Indian Tribe of Utah, the alleged main victim of Zander’s fraud. In December 2013, Zander appealed his conviction, sentence, and the amount of restitution he was ordered to pay to the Tenth Circuit Court of Appeals.
In July 2015, the Tenth Circuit affirmed Zander’s convictions, but reversed and remanded his sentence and order of restitution for further consideration. Zander subsequently filed a motion for release from custody, which was denied in November 2015. Following the denial of his motion for release, Zander filed his motion for show cause against several AUSA.
Court Begins by Setting Forth Elements of Criminal Contempt
The court began its analysis of Zander’s claims by reciting the standard for criminal contempt under 18 U.S.C. § 401, which sets forth:
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as –
- Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
- Misbehavior of any of its officers in their official transactions;
- Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
The court went on to explain that while the statute sets forth only three elements for criminal contempt, “courts are in general agreement that ‘four elements are required to support a contempt conviction under § 401(1): (1) There must be conduct which constitutes ‘misbehavior’; (2) the misbehavior must amount to an ‘obstruction of the administration of justice’; (3) the conduct must occur in the court’s presence; (4) there must be some form of intent to obstruct.’”
Court Finds That AUSA Did Not Violate Court Order
As it related to the allegations of contempt against the AUSA, Zander alleged that they had violated a court order requiring disclosure of 404(b) evidence and included false statements of material facts in two of their briefings.
On the issue of violating a court order, the court determined that the AUSA had not in fact violated a court order. There, the government reiterated its earlier argument that the testimony of the two witnesses referred to by Zander is not the kind of evidence that requires notice under 404(b), and, furthermore, the government stated that it had provided reasonable notice of the two witnesses and their potential testimony. Zander argued in response that the government violated the court’s order by failing to include two specific witnesses in its January 2013 Notice of Intent.
In October 2012, the magistrate judge granted Zander’s unopposed motion to disclose 404(b) evidence. In January 2013, the government filed a Notice of Intent to use potential Rule 609 and Rule 404(b) evidence.
Rule 404(b) provides that in a criminal case prosecutors may introduce evidence of “crimes, wrongs, or other acts,” but only if the government “provide[s] reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.” Similarly, Rule 609 provides that the prosecution or defendant may impeach a witness’s character for truthfulness through evidence of a previous criminal conviction, but if the conviction is more than ten years, then the proponent of the conviction must “give[ ] an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.”
The government stated in its Notice of Intent that it “provides the following notice of potential Rule 404(b) and 609 evidence presently possessed by the government, with the caveat that reasonable notice of additional evidence will be provided in the future as detailed above.” The witnesses identified by Zander were not included in the notice.
Court Notes That Zander Received Adequate Notice of Witnesses’ Testimony
Even though the court did not reach the issue of whether the two witnesses provided 404(b) testimony, the court ruled that Zander was given reasonable notice of the two witnesses. The court reasoned that the government had submitted a trial brief in February 2013, stating that the government intended to call the two witnesses identified by Zander, as well as setting forth the general nature of the evidence the government intended to introduce through the two witnesses.
The court explained:
The rule does not require the Government to include in its notice the specific purpose for which the evidence is intended to be introduced at trial. Moreover, although Judge Furse’s Order required the Government to give Notice at least 21 days before trial, providing notice two weeks before trial is not the type of willful misbehavior or disobedience that requires punishment through criminal contempt proceedings. A two week notice was a sufficient length of time for Mr. Zander to become aware of and contest the Government’s 404(b) evidence. Accordingly, the Government’s notice of the two witnesses was reasonable.
Court Says Alleged False Statements Did Not Rise to Level of Criminal Contempt
Turning to the issue of false statements in the government’s briefs, the court concluded that the alleged false statements did not rise to the level of criminal contempt. In support of its conclusion, the court said that while Zander alleged that the government lied when it said it did not intend to introduce 404(b) evidence as part of its case-in-chief and that the government lied during sentencing:
Neither alleged false statement rises to the level of criminal contempt. In the former statement, the Government stated that it did not intend to use 404(b) evidence in its case-in-chief, this does not necessarily mean that its intentions could not change. And in the latter statement made by the Government during Mr. Zander’s sentencing hearing there is no indication that the statement— even assuming it was false—was made with any willful intent. Furthermore, Mr. Zander fails to explain how either statement was material to the administration of justice.