March 27, 2017
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,
Bauer and Easterbrook, Circuit Judges, and DeGuilio, [*] District Judge.
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
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.
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.
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.
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
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.
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.
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
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 ...