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United States v. Ogoke

United States Court of Appeals, Seventh Circuit

June 22, 2017

United States of America, Plaintiff-Appellee,
Chinyere Alex Ogoke, Defendant.

          Argued March 27, 2017

         Appeal of: Michael I. Leonard, Attorney Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 00105-2 - Ronald A. Guzman, Judge.

          Before Bauer and Easterbrook, Circuit Judges, and DeGuilio, [*] District Judge.

          Bauer, Circuit Judge.

         Attorney Michael Leonard was convicted of contempt under 18 U.S.C. §§ 401(1) and (3) after he made a closing argument, in violation of the district court's written order, regarding a witness who did not testify at trial. He appeals his conviction on both substantive and procedural grounds. We affirm.

         I. BACKGROUND

         On February 26, 2013, Leonard was appointed under the Criminal Justice Act to defend Chinyere Ogoke, who had been charged with two counts of wire fraud. On May 6, 2015, Ogoke's codefendant Matthew Okusanya entered into a cooperation plea agreement with the government. Ogoke proceeded to trial on July 13, 2015, represented by Leonard and pro bono co-counsel, Robert Robertson.

         On May 4, 2015, the government filed a motion in limine seeking to prohibit the defense from introducing any evidence or making any argument related to potential witnesses not called to testify at trial. On May 13, 2015, Judge Ronald Guzman entered an order stating that "unless there is a showing that the missing witness is peculiarly within the government's control, either physically or in a pragmatic sense, Defendant is precluded from commenting on the government's failure to call any witness." The order further stated that if such a showing were made, counsel must petition the court before making any comment or argument regarding the missing witness.

         It was the government's theory at trial that Ogoke and Okusanya were coconspirators in a fraud scheme. Okusanya appeared on the government's witness list, but the government decided not to call him during trial. During his closing argument, Leonard said the following:

Now, according to the government, Mr. Oku-sanya was intimately involved in the scam, right? Matthew Okusanya was intimately involved in the scam. He did all sorts of things. ... [B]ut ask yourselves about the testimony you heard from here in the case, which is your evidence. Matthew Okusanya didn't say one word about Alex Ogoke. Wouldn't you think if Matthew Okusanya was a grand schemer with Alex Ogoke that he would have some evidence, some? ... [H]e's the guy. Do you remember? He's working in cahoots, according to the government, with Alex Ogoke. Not one word from Matthew Okusanya during the trial about Alex Ogoke. That's strange. Now, the government could get back up and say: Mr. Leonard could call Mr. Okusanya as a witness. Remember the instruction. We don't have to raise a finger. They have to prove Alex Ogoke guilty beyond a reasonable doubt. We don't have to call witnesses to say they won't say something. If the government had something from Okusanya to support the idea that this guy did it, you would have heard from the grand schemer, Mr. Okusanya.

         At this point, the government objected; Judge Guzman sustained the objection and struck that portion of the argu- merit. After closing arguments, Judge Guzman adjourned the trial for the weekend.

         The following Monday, before the jury returned a verdict, Judge Guzman issued an order to show cause as to why Leonard should not be held in contempt for violating the court's ruling on missing witness arguments. The same day, the jury found Ogoke not guilty on all counts.

         The government sent a letter to the court seeking to recuse itself from the contempt proceeding "because this office has other pending matters with Mr. Leonard and the contempt proceeding arises in a trial that our office handled with Mr. Leonard that resulted in an acquittal." Based on those conflicts, the government asked that the court appoint another attorney to prosecute the contempt charge.

         On August 26, 2016, Judge Guzman held a hearing on the order to show cause. Leonard was represented by counsel, but no prosecutor was appointed. When the hearing began, Judge Guzman asked if Leonard had any questions about the charges; his counsel responded that he did not. Judge Guzman then asked how Leonard wished to proceed. Leonard's counsel explained that he would like to make a brief opening remark and then call Leonard and Robertson to testify. Judge Guzman then took judicial notice of the entire record of proceedings of the case, and Leonard's counsel began presenting his defense.

         Leonard testified that, after initially reviewing the order on missing witnesses when it was issued, he failed to review it again during the trial or prior to his closing argument. He stated that, during his closing, he had not realized he violated the ruling, but later acknowledged that he had made a "huge mistake." He testified that the mistake was unintentional and that he did not willfully violate the order. Robertson testified that the issue of the missing witness ruling did not come up while he and Leonard were preparing for closing arguments. He stated that if he had realized the argument regarding Okusanya would have violated the court's ruling, he would not ...

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