Sense and sensibility: Consecutive contempt sentences could get MSC review

The way Judge Michael Warren of the Oakland County Circuit Court saw things, he was giving Brian James Veilleux a break when he sentenced him to three years of probation with 365 days in jail (with work-release) for possessing cocaine.

The sentencing guidelines called for up to 34 months in prison, and under the plea agreement, Veilleux could have received a 1- to 15-year prison term.

Veilleux had an impressive list of felony and misdemeanor convictions, 10 in all. Most were related to drunk driving or drugs.

But Warren decided to be lenient and told Veilleux just that when he announced the sentence.

All things considered, Veilleux should have been grateful. But something must have rubbed him the wrong way.

Very shortly after being sentenced, defendant began to shout and curse at the trial court judge. He persisted in this behavior despite being told that he was being found in contempt for each outburst. The trial court held defendant in contempt a total of seven times before defendant was removed from the courtroom. The outburst was not transcribed, but defendant does not contest the characterization of his behavior.

The trial court entered an order … sentencing defendant to jail terms of 90 days for each contempt citation. The terms were to be served consecutive to one another and consecutive to defendant’s one-year jail term that defendant was serving as part of his probation sentence. Defendant never appealed from the sentences. People v. Veilleux. (Michigan Court of Appeals) (unpublished per curiam) (majority opinion) (dissenting opinion)

In short, Veilleux, who was no stranger to the court system, got a year in jail for possessing less than 25 grams of cocaine and was ordered to serve significantly more time — 630 days — for being lippy with the judge.

After a year in jail, Veilleux was released in error without serving his seven consecutive contempt sentences.

His early freedom was short-lived. Less than three weeks later, he was arrested for assault. He was drunk at the time. The assault charge was dropped. But being drunk was a probation violation.

Warren was generous in allowing credit for time served but gave Veilleux a long sentence for the probation violation — 34 months to 15 years in prison. That sentence, said Warren, would begin to run right after Veilleux served all seven of his consecutive contempt sentences.

In the Court of Appeals, Veilleux argued that Warren lacked authority to order consecutive contempt sentences and to order that the drug sentence would run consecutive to the contempt sentences.

We’ve been down this road before with Judge Warren, the Court of Appeals replied. In a 2005 case, People v. Williams (Michigan Court of Appeals) (unpublished per curiam), the COA affirmed Warren after he imposed four consecutive contempt sentences on a “rude and disruptive” defendant. According to the Williams panel:

The clear and unambiguous language of MCL 768.7a(1) requires that each of defendant’s sentences for contempt not only be consecutive to the term of imprisonment being served at the time the contemptuous conduct occurred but also be consecutive to “terms of imprisonment which the person … has become liable to serve.” Because as each instance of contempt of court occurred, the trial court properly and immediately found defendant guilty of contempt, MCL 600.1711(1) … defendant “has become liable to serve” a term of imprisonment for that contempt of court. Thus, as the trial court found defendant guilty of each succeeding contempt as it occurred, defendant was liable to serve his prior contempt sentences.

The Veilleux panel acknowledged that Williams was not binding.

We find Williams to be instructive only to the extent that it holds that “each contempt sentence is required to be served consecutively to those prior contempt sentences for which defendant had already become liable to serve.” Although raised in the context of allowing stacking of multiple contempt sentences, the phrase supports a finding that a defendant should always be required to serve a sentence for which he has become liable to serve. …

Defendant must be made to complete the sentence from which he was improperly discharged. Failure to so order would result in defendant suffering no penalty for his outrageous courtroom behavior and criminal contempt convictions.

In her dissent, Judge Deborah Servitto argued that MCL 768.7a(1) doesn’t apply in this case. She noted that the statute applies to “a person who is incarcerated in a penal or reformatory institution in this state …. and who commits a crime during that incarceration[.]”

Veilleux wasn’t incarcerated when Warren banged the contempt gavel seven times.

And, said Servitto, this brings us to another point for consideration.

I am sure that most judges have experienced the not-so-respectfully expressed resentment of a defendant at one time or another. But, as observed in In re Contempt of Dudzinski, 257 Mich App 96, 107; 667 NW2d 68, (2003), when wielding contempt powers, “[t]rial courts …. must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” After all, “[j]udges are supposed to be men of fortitude, able to thrive in a hardy climate.” Id. In imposing seven consecutive 90-day sentences, it appears as if the trial judge was acting in response to an offense to his sensibilities.

Veilleux filed a leave application with the Michigan Supreme Court. Perhaps Servitto’s sensible dissent got the MSC thinking about a couple of things. The MSC will hear oral arguments on whether to grant leave to appeal.

At oral argument, the parties shall address: (1) whether sentences imposed after a finding of criminal contempt must be served consecutively under MCL 768.7a; and (2) whether a court may hold a person in contempt multiple times for each contemptuous act in a continuous course of conduct.

The MSC also ordered “the Oakland Circuit Court to determine whether any recording of the defendant’s contemptuous behavior exists, and if so, to provide a copy of that record to this Court.”

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Western District proposes rules for online sentencing reports

Presentence reports would be submitted and served via the CM/ECF system under proposed amendments to the U.S. District Court for the Western District of Michigan’s local court rules.

The proposed changes to W.D. Mich. LCivR 32 would also require that objections to the report would be filed on CM/ECF as well.

According to commentary accompanying the proposed changes:

Improvements to the CM/ECF software will allow both Probation and counsel to restrict access to these documents, so that the court, the Probation Office and counsel for the relevant parties will have access, but no other person. In this way, the confidentiality of these documents will be preserved, while saving the cost of traditional service and creating a permanent electronic record of these documents.

Here’s a court-provided summary of the proposed changes:

Proposed Rule 32.2(c)(1) requires the Probation Office to submit the disclosure presentence report by the CM/ECF system, with access restricted to the court, the Probation Office, and attorneys for the government and for the relevant defendant. Therefore, neither the public nor co-defendants will have access to the disclosure presentence report.

Likewise, the United States Attorney and counsel for represented defendants must submit any objections to the disclosure presentence report by the CM/ECF system, again restricting access. Proposed Rule 32.2(d). If a party has no objections, the CM/ECF software will allow counsel to so indicate, without the necessity of generating a separate document.

Revised presentence reports, and objections thereto, will be governed by the same process. The intent is that all such documents, which were never disclosed to the public in the past, would remain confidential.

Until the final presentence report has been submitted, the court has neither the intention of accessing the report or objections nor a reason to do so. These documents will be available thereafter, however, should the court (or the Court of Appeals) require access for the purpose of resolving any issue regarding sentencing.

The final PSIR will be submitted by the CM/ECF system, again with restricted access. Amended Rule 32.2(f). Thereafter, sentencing memoranda, motions for departure or variance, and other submissions to the court regarding sentencing should be submitted without restriction, unless the submitting party first obtains leave of court. The court recognizes that these filings sometimes contain sensitive matter, such as details of a defendant’s cooperation, that will merit restricted access. The burden will be on the submitting party to justify restricting access before the document is filed.

Comments are encouraged. All comments should be in writing and must be received by the Court no later than October 17, 2011. Comments should be addressed to:
Tracey Cordes, Clerk
United States District Court
399 Ford Federal Building
110 Michigan, N.W.
Grand Rapids, MI 49503
or submitted electronically to ecfhelp@miwd.uscourts.gov. The Court will consider all comments at its December meeting before promulgating a final version of the proposed rules.

6th Circuit nixes Western District’s early plea ‘incentive’

Eleventh-hour guilty pleas are a fact of life in the criminal justice system.

On the defense side, waiting is a good strategy. You might get a better offer from the government. Favorable evidence may surface. Witnesses may get cold feet.

On the prosecution side, a last-minute plea means months of marshaling evidence and witnesses are all for naught.

And judges dislike reshuffling their calendars on a moment’s notice.

The Western District of Michigan, up until a few days ago, had a policy to discourage all of this.

The policy was typified in a final pretrial and trial order Judge Robert J. Jonker issued in United States v. Mackety:

A defendant who waits until the time set for the final pretrial conference to plead guilty may not receive the one-level reduction in offense level described in U.S.S.G. § 3E1.1(b), even if the government is prepared to move for it.

In other words, even if a defendant accepts responsibility for his wrongdoing, and even if the government agrees that the defendant’s contrition is sincere and his assistance to avoid trial was helpful, the defendant won’t get a break on his sentencing guidelines score to which he might otherwise be entitled.

This is not a good policy, no matter what the motivation, ruled the 6th Circuit after Mackety challenged his sentence following his plea-based conviction.

The record supports the argument that the district court’s policy influenced the Government not to move for a § 3E1.1(b) reduction and, in doing so, usurped the Government’s discretion to move for the § 3E1.1(b) reduction. …

[T]he Government stated that it had not addressed the § 3E1.1(b) reduction in the Plea Agreement because of the district court’s rule and that it would not oppose a third-level reduction.

A similar understanding of the district court’s policy also affected the Probation Officer’s calculation of the advisory Guidelines range. Specifically, the PSR [presentence report] did not recommend a § 3E1.1(b) reduction because Mackety’s plea was “untimely” under the district courts policy … .

The policy runs afoul of what Congress had in mind when it authorized a break for defendants who accept responsibility:

[T]he Government’s prerogative and discretion to move for the § 3E1.1(b) reduction was affected throughout the proceedings by the district court’s policy, a policy that contravenes the Congressional finding expressly stated in § 3E1.1(b) that “the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial.” …

We take this opportunity to advise that such policies should be discontinued immediately because they are inconsistent with Congress’ intent that the Government make the decision whether to move for the additional one-level reduction under § 3E1.1(b).

The 6th Circuit held that Mackety would have to be resentenced because his existing sentence was procedurally unreasonable.

But all I did was sell it

“Well, that’s not where we’re making our money.”

– Defendant Joe Swafford, explaining to a methamphetamine cook who bought large quantities of iodine from him, why so much of the other stock in Swafford’s store was out of date.

Swafford operated a store called Broadway Home and Garden, which, as it turned out, was a front for his high-volume iodine sales business. Twenty meth cooks testified at his trial that they routinely bought iodine from him to use in their recipes.

Swafford was convicted of selling more than 3,000 gallons of the stuff. He complained that his 30-year sentence was too stiff because it was based, in part, on a sentencing guidelines cross reference that treated his iodine sales as conduct involving meth manufacturing.

I wasn’t convicted of cooking meth, Swafford protested. You didn’t have to be, replied 6th Circuit Judge Jeffrey S. Sutton in United States v. Swafford. You just needed to be “involved.” And, oh brother, were you ever:

Swafford purchased large amounts of iodine from wholesalers, well beyond any amount that reasonably could be sold for legitimate purposes. He in turn sold the same volume of iodine to known methamphetamine cooks. And he accepted only cash for the iodine purchases, though he accepted credit cards or checks for other purchases.

The pattern of sales to methamphetamine cooks cements this conclusion. They came to Swafford on a regular basis, up to three times a week, to buy the iodine. …

When a police officer was in the store just as one methamphetamine cook entered, Swafford met the customer at the door, directed him to read literature about dog shampoo, then sold him iodine after the officer left.

Swafford made deliveries as well, Sutton noted.

One methamphetamine cook, Brian Storey, testified that the two had the kind of ongoing “relationship” that “[w]hen he sees me, he knows what I’m there for.” …

Storey wanted to stay out of Tennessee due to pending gun charges, so once or twice a month Swafford would meet Storey at a convenience store in neighboring Alabama, where people “very seldom ever see[ ] any police,” and Storey would hand Swafford up to $3,500 in cash for a box of 10–18 pounds of iodine out of the back of
Swafford’s truck.

The 6th Circuit had no trouble affirming Swafford’s sentence.

Swafford would have had no trouble at all had he just stuck with selling household sundries.

And keeping fresh stock on the shelves.

Where’s the injustice?

Lesson to lawyers with aspirations to solve the justice system’s flaws: be sure you pick the right battlefield on which to fight.

One lawyer last week irked Michigan Supreme Court Justice Elizabeth A. Weaver when he argued on application the injustice of his client’s sentence. In People v Kade, Bernard Kade had pleaded guilty to third-degree fleeing and eluding and was informed by his lawyer that the maximum sentence would be five years.

However, Kade was a habitual offender, having been convicted twice of operating under the influence, and he was sentenced to a minimum of two years, six months, and a maximum of 10 years. The trial court denied his motion to withdraw his plea.

Attorney Dana B. Carron said that he should have been informed of his maximum possible sentence as required by MCR 6.302(B)(2).

Kade served 30 months, and by the time Carron was in front of the Michigan Supreme Court, Kade was actually out of prison and was sitting in the courtroom.

And that made Justice Stephen J. Markman ask, “Why isn’t this case moot? … Is it his intent to withdraw his plea?”

Carron said it won’t be moot until his client is released from parole.

“He’s willing to take the potential punishment in order to gain for everyone else,” Carron said.

Carron said that in his line of work he’s seen hundreds of defendants charged as habitual offenders, and the judge almost always enhances their sentences, so they should be made aware of that during the plea negotiations.

Justice Robert P. Young asked why Kade’s attorney didn’t just tell him as much.

The best a judge could do before sentencing is give an “indeterminate ‘something really bad could happen to you'” warning about habitual offender sentencing enhancements, Young said.

And allowing defendants to withdraw their pleas at sentencing would create havoc in plea negotiations, said Prosecuting Attorney Marilyn J. Day.

“The only problem with allowing the withdrawal of a plea … now you’re at sentencing,” Day said. “The prosecutor is in a bit of a bind because they were relying on that plea.”

Still, she added, that bind is better than defendants appealing after the fact.

“What’s the problem here? Where’s the injustice?” Weaver asked. “You have given us not one bit of reason but intellectual theorizing in the future.

“If you want to argue about other cases in the future … when that case comes maybe we’ll here it.
That’s where I am. You’ll have to convince the rest of these people to take this case.”

She said she simply couldn’t find one reason  that the court should grant Kade any relief.

“Is it really unjust,” she asked, “that he might have to behave himself” for the duration of his probation.

He only has to behave until September, Day noted. That’s when he’ll be discharged from parole.

‘Robin Hood’ embezzler gets prison term

A Michigan bank manager, Patricia Keezer, who insists she gave the $340,000 she stole over eight years to needy customers was sentenced Tuesday to a year and a day in prison by U.S. District Court Judge Marianne Battani, who declared that Keezer’s “Robin Hood days are long over,” reports The Associated Press.

According to The AP, Keezer explained that, “the embezzling began in 2000, when she would give needy people $2,000 at a time for car repairs, mortgage payments and taxes. Keezer commonly reversed bounced-check charges and other fees when she was a manager of Citizens Bank, formerly known as Republic Bank, in Manchester, 70 miles southwest of Detroit.”

More from The AP:

“I would take other people’s problems and make them my problems,” Keezer told the judge. “I do have a problem with giving things away.”

She repeatedly expressed remorse and said she would accept the death penalty for the crime if it were a possibility and she didn’t have a family.

Assistant U.S. Attorney Erin Shaw asked for two years in prison and said Keezer’s claim of a crime rooted in charity was “implausible.”

“We don’t know where the money is. … It just doesn’t add up,” Shaw said.

But defense lawyer Raymond Cassar noted there’s no trail of luxuries. He asked the judge to sentence Keezer to home confinement.

“She didn’t use it on herself. She didn’t bury it in the ground. She didn’t give it to her husband,” he said of the missing money. “She gave it away. It’s believable.”

Wayne County judge: Former Detroit mayor must disclose finances

Wayne County Circuit Court Judge David Groner has ruled in favor of a discovery motion forcing former Detroit Mayor Kwame Kilpatrick to disclose his assets within 10 days, according to a post on mlive.com.

The judge originally requested full disclosure in March, but Kilpatrick failed to produce any financial information since that ruling.

Kilpatrick has until Oct. 16 to disclose any assets held by himself, his wife or a third party for his benefit. He’ll also have to provide salary information and disclose any gifts he may have received.

He’s also expected to attend an evidentiary hearing on Oct. 29, but Judge Groner said there was a small possibility he could cancel that hearing if he reviews the documents and determines it isn’t necessary.