Contempt Finding in United States v. Stevens

663 F.3d 1270, 398 U.S. App. D.C. 334, 2011 U.S. App. LEXIS 24431, 2011 WL 6117925
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 9, 2011
Docket10-5372
StatusPublished
Cited by5 cases

This text of 663 F.3d 1270 (Contempt Finding in United States v. Stevens) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Contempt Finding in United States v. Stevens, 663 F.3d 1270, 398 U.S. App. D.C. 334, 2011 U.S. App. LEXIS 24431, 2011 WL 6117925 (D.C. Cir. 2011).

Opinions

ROGERS, Circuit Judge:

The issue in this appeal is whether the district court erred in holding two Justice Department attorneys in contempt without affording them the procedural protections provided by Rule 42(a) of the Federal [1271]*1271Rules of Criminal Procedure for criminal contempt. We hold there was no error. The character and nature of the contempt were civil. Its purpose was to compel the production of documents to the defendant as the district court had ordered. The contempt was purged upon their production, the contempt was lifted, and no sanctions were imposed because the contempt finding had prompted compliance with the district court’s order.

I.

In October 2008, after a trial that the district court characterized as “marred by repeated allegations of discovery violations and prosecutorial misconduct,” In re Contempt Finding in United States v. Stevens, (“Contempt Finding”), 744 F.Supp.2d 253, 256 (D.D.C.2010), a jury convicted a sitting United States Senator of accepting gifts without reporting their value on his campaign disclosure forms, in violation of 18 U.S.C. § 1001(a)(1) & (2). Prior to sentencing, the Justice Department received on December 2, 2008 a self-styled “whistle-blower” complaint from FBI Special Agent Chad Joy. The complaint alleged misconduct by certain government employees involved in the investigation and prosecution, but not William M. Welch or Brenda K. Morris, the two Justice Department attorneys now before this court who are, respectively, the Chief and Principal Deputy Chief of the Public Integrity Section, Criminal Division. The Department notified the district court ex parte on December 11, 2008 by sealed memorandum and requested the Joy complaint be filed under seal. On December 19, after a sealed hearing attended by Welch and Morris and at which Joy’s attorney asked that the complaint be sealed based on Joy’s desire for whistleblower protection, the district court ordered the Department to give an unredacted copy of the complaint to the defendant and that a redacted copy of the complaint be filed on the public docket.

A second hearing was held on January 14, 2009 regarding whether, as the Department requested, redacted names should be made public, including Joy’s. Welch advised the district court that Joy did not qualify for whistleblower status. The district court, concerned that it had been misled at the December 19 hearing, sought to determine when Joy had been denied whistleblower status. Morris stated Joy “had been given a letter as early as December 4th telling him he had been denied whistleblower status.” Status Hr’g Tr. Jan. 14, 2009 at 17. When the district court inquired why it had not been informed, Welch and Morris stated neither they nor the Public Integrity Section had known. After further questioning, the district court stated that it wanted a declaration from the Attorney General stating who knew what when and told Welch and Morris that they had an obligation to inform the district court that Joy had been denied whistleblower status either before the December 19 hearing or as soon as they learned. The district court’s revised order read:

ORDERED that the government produce all communications to, from, or between anyone in [the Office of Public Integrity], and any other office within the Department], including, but not limited to, the [Office of Inspector General, the Office of Professional Responsibility], the FBI, and the U.S. Attorney’s office for the District of Alaska, between November 15, 2008 and the present, regarding the complaint filed by Agent Joy, to be filed under seal with the Court, with a copy provided to the defendant pursuant to the protective order already in place in this case, by no later than January 30, 2009.

Order Jan. 21, 2009 at 18.

On January 30, 2009, .the Department filed its response, ex parte, providing the [1272]*1272documents to the district court for in camera inspection. An accompanying memorandum stated that “[r]ead literally, the January 21 Order would require the disclosure of any communication ‘to, from, or between anyone in [the Office of Public Integrity], and any other office within [the Department]’ between November 15, 2008 and January 21, 2009,” related to Joy’s complaint, including communications irrelevant to whether the Department had misled the court. Gov’t’s Submission in Response to the Court’s Jan. 21, 2009 Order at 12. The Department accordingly limited its production to documents concerning who within the Department knew about Joy’s whistleblower status and when they knew it, and objected to any broader disclosure. It asked for a two-week stay of the January 21 order if the district court disagreed, so the Department could seek reconsideration or appellate review. The Department provided only a redacted version of its memorandum to the defendant, stating “it has become apparent that compliance would require the production of substantial amounts of privileged and work-product protected materials.” Id. at 13. It requested advance notice of any decision by the district court to release the documents to the defendant. The memorandum was signed by Patty Stemler, the chief of the Appellate Section, Criminal Division, Welch, and Morris.

On February 2, 2009, the defendant moved for the district court to “hold the government in contempt and require immediate compliance with the January 21 Order.” Sen. Stevens’s Mot. to Dismiss or for a New Trial, or in the Alternative, Mot. to Hold Gov’t in Contempt for Violating Court’s Jan. 21, 2009 Order at 12. The motion argued that although the January 21 order was “unambiguous,” and the district court had warned that motions for reconsideration be filed well in advance of the deadline and parties refrain from ex parte communications, the Department had not turned over the documents nor sought reconsideration of the district court’s order, but instead “simply violated the Order and filed a last-minute ‘conditional’ request for a stay that could not have been acted upon before the compliance deadline.” Id. at 7 (emphasis in original). Arguing further that “[t]he government has flagrantly disobeyed the Court’s order,” the motion urged that “only a contempt sanction can ensure compliance.” Id. at 11. The motion cited authority for using civil contempt to ensure compliance with a court order for document production, see id. at 11-12 (citing Fannie Mae Securities Litigation, 552 F.3d 814, 823-24 (D.C.Cir.2009)), and argued that to the extent the Department claims the documents are privileged “those documents should be ordered produced to the defense as a remedy for the government’s contempt,” id. at 12.

On February 3, 2009, the district court ordered the Department to respond to the motion by February 9 and to “include a detailed privilege log for each communication it seeks to withhold,” with points and authorities. Order Feb. 3, 2009 at 3. It also called for a declaration from “an official with oversight responsibility for the Civil Division ... and any and all relevant communications between attorneys in the Civil Division and attorneys within the Public Integrity Section or the Appellate Section of the Criminal Division.” Id. at 5.

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Cite This Page — Counsel Stack

Bluebook (online)
663 F.3d 1270, 398 U.S. App. D.C. 334, 2011 U.S. App. LEXIS 24431, 2011 WL 6117925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/contempt-finding-in-united-states-v-stevens-cadc-2011.