Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

SRM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States of America, Plaintiff/Respondent -vsLeslie Charles Cohen, Defendant/Movant CR-01-0099-PHX-JAT CV-04-0933-PHX-JAT (JI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration is Defendant/Movant's Motion for Contempt of Court and Sanctions, filed August 18, 2004 (#233-1 and #233-2). Movant seeks an order finding trial counsel, James Syme, Jr., to be in contempt of court because of his disclosure of Movant's sealed psychiatric evaluation, and sanctioning him for perjury in connection with Movant's Motion to Vacate (#218). No response to the motion has been filed. Magistrate judges are authorized in cases heard on referral to certify findings of contempt to the District Judge for final determination. 28 U.S.C. § 636(e)(6). Contempt - Movant asserts that trial counsel has acted in contempt of the Court's order sealing Movant's psychiatric evaluation by submitting the report to the bar association in response to complaints by Movant. (Motion, #233 at 1, referencing Response, #228, Exhibit 10, Syme Affidavit at ¶ 18.) However, the Court never ordered Movant's report sealed. The Court's order directing the examination required that the reports be delivered to the prosecution and defense counsel, and made no reference to it being filed under seal or otherwise. (Order 6/7/01, #34.) But see 18 U.S.C. § 4247(c) (directing that report "shall be filed with the court", but not designating filing be under seal). On July 24, 2001, the prosecution filed the report with the court, and denoted that it was filed "under seal" (#40). The Court noted its review of the report at a status hearing on July 25, 2001, but did not order it sealed. (M.E. 7/25/01, #41.) Movant did move to seal the references to the report in
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Syme's Affidavit. (Motion, #236.) However, that motion did not relate to the report itself, and was denied. (Order 1/11/5, #247.) Accordingly, Movant has failed to show any order sealing the records which Mr. Syme could be sanctioned for violating. Perjury - Movant also argues that Mr. Syme has engaged in perjury on the following issues: (1) number of counsel's meetings with Movant; (2) number of criminal cases tried by counsel; (3) Movant's termination of their attorney/client relationship; (4) whether counsel believed Movant was competent; and (5) counsel's acquisitions of trial exhibits. Movant raises a number of other objections concerning Mr. Syme's competence and the quality of his representation, but which do not involve perjury. A witness has committed perjury only "if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." U.S. v. Dunnigan, 507 U.S. 87, 94 (1993) (analyzing federal criminal perjury statute). Mere "inconsistency is not tantamount to perjury absent a showing of knowing falsehood." United States v. Flake, 746 F.2d 535, 539 (9th Cir.1984), cert. denied, 469 U.S. 1225 (1985) (abrogation on other grounds recognized in U.S. v. Uchimura, 107 F.3d 1321 (9th Cir.(Hawai'i) 1997)). Meetings with Counsel - Movant disputes counsel's avowal that he met with Movant on "numerous occasions." Movant does not establish that this statement is false, but merely opines that records at CCA-CADC would show only one visit, and that Movant was in court only six times prior to trial. However, Movant fails to present any evidence of the number of times he and Mr. Syme met, nor does Movant offer anything to show that such number could not qualify as "numerous." Criminal Cases Tried - Movant also argues that counsel must be lying about the number of criminal cases he has tried. Mr. Syme's Affidavit states: "I have tried approximately 150 criminal jury trials during my career." Movant objects that he made the same statement in 2002 to the ABA, where he stated he had "tried approximately 150 jury trial[s] in various courts." (Memorandum, #221, Exhibit H.) Movant opines that this must be false because it is "less than five cases per year and means he has not done any trials for the past two years."
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(Motion, #233 at 2.) However, Movant offers nothing to show or even suggest that the statement is false. With the percentage of cases resolved by plea, it is not uncommon for busy, competent criminal defense attorneys to go for substantial periods of time without trying cases. Moreover, both statements do not assert a specific number, but an approximation. Termination - Movant argues that Mr. Syme lied when he said that Movant never "discharge[d] me or request[ed] to obtain new counsel." Movant offers nothing to disprove this statement other than Movant's own, unsworn assertion. Competence - Movant points to the fact that Mr. Syme represented to the Court that "I believe that [the Defendant] is competent" and yet he states in his Affidavit that "it was obvious that he had some underlying psychological issues and I felt I needed to know if he was competent." However, these statements are not necessarily contradictory. Mr. Syme may well have believed Movant competent, and yet because of Movant's behaviors have had sufficient doubts to believe that a formal evaluation was warranted. Trial Exhibits - Finally, Movant asserts perjury when Mr. Syme avows that he "obtained copies of the Government's trial exhibits" because Mr. Syme had told Movant in 2001 that he did not "have copies of all of the Government's trial exhibits." Obtaining and having are separate matters. Movant fails to foreclose the possibility that counsel had obtained all exhibits, but no longer had them at the time of his letter to Movant. In sum, Movant fails to show that Mr. Syme has knowingly made a false statement to this Court. Therefore, the Court finds no basis for a finding of contempt or sanctions. IT IS THEREFORE ORDERED that Defendant/Movant's Motion for Contempt of Court and Sanctions, filed August 18, 2004 (#233-1 and #233-2) is DENIED.

DATED: January 6, 2006
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_____________________________________ JAY R. IRWIN United States Magistrate Judge

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