The opinion of the court was delivered by: RICHEY
The government has moved the Court to find the defendant, Christopher E. Griffin, guilty of civil contempt for lying under oath and refusing to obey the Court's order to pay restitution amounting to $62,500 because he did not immediately pay partial restitution of $5,400, which defendant and his attorney represented to the Court would be paid at sentencing on February 27, 1986. After careful consideration of the government's memorandum, defendant's response thereto and the record, the Court finds the defendant guilty of civil contempt and orders that the $5,400 paid into the registry of the Court be paid to the Attorney General for the reasons set forth below.
On January 23, 1986, defendant pleaded guilty to mail fraud, 18 U.S.C. § 1341. On February 27, 1986 defendant was sentenced to five years imprisonment and ordered to pay restitution in the amount of $62,500. At the February 27, 1986 sentencing hearing, prior to the imposition of the sentence, defendant and his counsel, Mr. Halleck, made several representations to the Court.
Mr. Halleck told the Court that he had in his possession $5,400 that he intended to give to the victim that day, February 27th, to make partial restitution. (Sentencing Transcript 5, 17, 23 & 48) (hereinafter "S"). Mr. Halleck also advised the Court that defendant was making an effort to recover any additional funds that were available to him in order to make full restitution as quickly as possible. (S 6, 22-24 & 48).
The defendant also testified that he intended to make restitution. Specifically, the defendant claimed that he sent to his brother approximately $ 30,000 obtained from the victim and that his brother used the money to purchase an automobile. (S 9-10, 25 & 36). Defendant said that he was trying to get the money back to pay restitution to the victim, but that his brother had wrecked the automobile he purchased with the money and, therefore, he had to wait for his brother to receive the insurance proceeds. (S 9-10, 25 & 36). The defendant also represented to the Court that the $5,400 in Mr. Halleck's possession had been sent to him by his brother and that he has banking records to prove that his brother was the source of the money. (S 36).
After the Court sentenced defendant, ordering him to pay restitution in the amount of $62,500, Mr. Halleck refused to pay over the $5,400, notwithstanding his prior representations that he intended to use the money to pay restitution to the victim on the day of sentencing, February 27, 1986. Consequently, the Court issued an Order pursuant to the government's motion on March 6, 1986, demanding "that the defendant make immediate payment of the sum of five thousand four hundred dollars ($5,400) to the Attorney General in partial restitution to the victim in the instant case, or, in the alternative, that the defendant appear before this Court with counsel, Charles Halleck, Esq., on the 10th day of March, 1986, at 2:00 P.M. to show cause why the defendant should not be held in civil contempt . . . ." Order (filed Mar. 6, 1986).
On May 22, 1986, the show cause hearing was continued as requested by the government. At the hearing Ms. Joyce Goche testified that she was the source of the $5,400. (T 14-20). The defendant's brother, Marcus Griffin, testified that he was not the source of the money. (T 50-52). Marcus Griffin also denied that he used the $30,000-plus that he received from the defendant to purchase an automobile, (T 41, 43 & 50), but that he gave the money to a woman unknown to him per defendant's instructions. (T 32-41). Again, the Court took the motion for contempt under advisement to evaluate this new evidence. To this date, no money has been paid to satisfy the Court's order to make restitution.
III. THE DEFENDANT IS GUILTY OF CONTEMPT
A. The Defendant Made Factual Misrepresentations to the Court and, Therefore, Is in Contempt of Court for Obstructing the Administration of Justice
Pursuant to 18 U.S.C. § 401(1), this Court has the "power to punish by fine or imprisonment, at its discretion, such contempt of its authority and none other, as 1) Misbehavior of any person in its presence . . . as to obstruct the administration of justice."
In the present case, the government has accused the defendant of lying. Based on the record, particularly the Court finds that testimony of Ms. Goche and Marcus Griffin, the Court finds that the defendant lied on at least two occasions. First, the defendant stated that he received the $5,400 that Mr. Halleck waved before the Court from his brother. (S 36). Defendant's testimony, however, is refuted by both his brother Marcus Griffin and his friend Ms. Goche, an employee of the D.C. public schools with whom the defendant was living during the time between his release from federal prison for an unrelated offense and the sentencing in this case. Marcus Griffin testified that he was not the source of the $5,400. (T 50-52). Ms. Goche also testified that Marcus Griffin was not the source of the money because she had given the $5,400 to the defendant. Secondly, defendant claimed that his brother, Marcus Griffin, used $34,000 given to him by the defendant to buy an automobile. (S 9-10, 25 & 36). Marcus Griffin's testimony, however, directly contradicts defendant's testimony. Marcus Griffin stated that he never bought an automobile with the $ 34,000, (T 41, 43 & 50), but that the money was given to an unnamed woman on a street in cash at the defendant's request. (T 32-41).
Based on the whole record herein and its first hand observation and judgment as to the credibility of the witnesses, including the defendant, the Court finds that the defendant lied with respect to the source of the $5,400 and the whereabouts of $30,000-plus. Such misrepresentations of fact are inherently obstructive in the context of criminal contempt proceedings, which must be proved beyond a reasonable doubt. See United States v. Thoreen, 653 F.2d 1332, 1340-41 (9th Cir. 1981), cert. denied, 455 U.S. 938, 71 L. Ed. 2d 648, 102 S. Ct. 1428 (1982) (making misrepresentations to the fact finder is inherently obstructive for the purpose of a criminal contempt finding because it frustrates the rational search for the truth). Thus, they are inherently obstructive for the ...