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United States of America v. Scott J. Bloch

February 2, 2011

UNITED STATES OF AMERICA
v.
SCOTT J. BLOCH, DEFENDANT.



The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge

MEMORANDUM OPINION

On April 27, 2010, Defendant, represented by retained counsel, appeared before the undersigned United States Magistrate Judge for an inquiry pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Defendant, upon being advised by the undersigned of his right to trial, judgment and sentencing before a United States District Judge, consented to proceed before this court. Consent to Proceed Before United States Magistrate in a Misdemeanor Case (Document No. 2). Defendant indicated that he wished to plead guilty to the one-count Information filed by the United States Attorney, pursuant to the plea offer made by the United States Attorney for the District of Columbia. See Plea Agreement (Document No. 3). By said Information, the United States Attorney charged Defendant with the offense of criminal contempt of congress in violation of 2 U.S.C. § 192. Information (Document No. 1). The statute provides, in pertinent part:

Every person who having been summoned as a witness by the authority of . . . any committee of either House of Congress, willfully makes default, . . . shall be deemed guilty of a misdemeanor, punishable by a fine . . . and imprisonment in a common jail for not less than one month nor more than twelve months.

2 U.S.C. § 192 (emphasis supplied).

During the course of the nearly 45-minute hearing, Defendant, both orally and in writing, affirmed, inter alia, that he had reviewed the Information; that he understood the charge alleged in the Information; that he knew the penalties provided by the statute, and, more specifically, that he knew that the statute provided, as maximum penalties upon conviction, a term of imprisonment of 12 months and a fine of $100,000. See 04/27/2010 Minute Entry; Plea Agreement at 1, 8 [unnumbered].

At the conclusion of the Rule 11 inquiry, Defendant pled guilty to the offense charged. The court, upon consideration of Defendant's responses to the inquiries undertaken during the Rule 11 inquiry, found that Defendant's plea of guilty was a knowing and voluntary waiver of his rights supported by an independent basis in fact which contained each of the essential elements of the offense. The court therefore accepted the plea, and scheduled the sentencing hearing for a date in July, 2010. See 04/17/2010 Minute Entry.

However, the sentencing hearing has been repeatedly continued in order to permit counsel to address the issue of whether the statute provides for the imposition of a mandatory minimum sentence of one month. Neither counsel for Defendant nor the United States Attorney suggests that he, or the party he represents, did not read the statute and note the provision that the offense is "punishable by . . . imprisonment . . . for not less than one month[.]" Rather, they both maintain that the statute does not require the imposition of a minimum period of incarceration of one month, and, even it does, the court need not do so.

The issue presented appears to be one of first impression: counsel do not cite any published opinion in which a court decided whether or not the provision of 2 U.S.C. § 192 that a violation of that statute is "punishable by . . . imprisonment . . . for not less than one month" is a mandatory minimum sentencing provision, and the undersigned has found no such authority. However, for the reasons set forth herein, the court finds that no authority supports the requests of counsel that the court either interpret the sentencing provision as discretionary, or, alternatively, disregard the provision. The court therefore declines the invitation to do so.

THE CONTENTIONS OF COUNSEL

Neither counsel addressed the applicability of the provision of 2 U.S.C. § 192 that the penalty for a violation of that statute is "punishable by . . . imprisonment . . . for not less than one month" until the presentence investigation was completed.*fn1 The United States Attorney, in a footnote, and with no citation of authority, maintained that "this statute does not make the one month of incarceration a mandatory minimum period of incarceration[,]" and that "Congress has clearly not established any mandatory minimum period of incarceration for violations of 2 U.S.C. § 192." Memorandum in Aid of Sentencing (Document No. 10) at 6, n.2. The United States Attorney further maintained that "[t]he government does not see anything in the Guidelines or the U.S. Code requiring jail time of at least month, or precluding a sentence of probation for violations of 2 U.S.C. § 192." Id. Finally, the United States Attorney maintained that "the last two criminal prosecutions of 2 U.S.C. § 192 in this jurisdiction of which the undersigned AUSA is aware, each resulted in [a] sentence of probation. See U.S. v. Tejada, Cr.-09-mj-077 (AK) and U.S. v. Abrams, Cr.-91-575 (AER)." Id.

Defendant, in a virtually identical footnote, "agree[d] with the government that the PSI erroneously concludes that a one-month term of incarceration is mandatory," and that "[a]s the government correctly notes, nothing in the language or operation of the statute suggests that a mandatory term is required." Defendant's Memorandum in Aid of Sentencing (Document No. 11) at 3, n.1.*fn2 Counsel for Defendant asserted that "undersigned counsel conducted an extensive review of 2 U.S.C. § 192 prior to the guilty plea, and our review yielded only two prosecutions of the statute in the past twenty years-United States v. Tejada, Cr.-09-mj-077 (AK) and United States v. Abrams, Cr.-91-575 (AER)-both of which resulted in probation." Id.

In addition to the conclusion briefly addressed in their footnotes, counsel for both parties submit that (1) judges have previously sentenced defendants convicted of violations of 2 U.S.C. § 192 to terms of probation; (2) the term "punishable" is imprecise, and should not be construed in the same manner as "shall be punished"; (3) the rule of lenity "weights in favor" of a finding that the statute does not include a mandatory minimum sentencing provision, and (4) the court "[m]ust [d]isregard" the inclusion by the United States Sentencing Commission of 2 U.S.C. § 192 in its summary of offenses for which a statutory mandatory minimum sentence is provided. Supplemental Memorandum in Aid of Sentencing (Document No. 15) at 2-5; Defendant's Supplemental Memorandum in Aid of Sentencing (Document No. 16) at 2; [Second] Supplemental Memorandum in Aid of Sentencing (Document No. 23) at 2-7; Defendant's Second Supplemental Memorandum in Aid of Sentencing (Document No. 24) at 1-13; see also 07/23/2010, 09/08/10 Minute Entries.

DISCUSSION

Legislative ...


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