Opinion
2:05-CR-64-FTM-29SPC.
April 19, 2006
OPINION, ORDER AND JUDGMENT OF CONTEMPT
This matter came before the Court on April 19, 2006, during the jury trial of defendant Daniel Lopez. The United States called Luis Cuevas as a witness, and Mr. Cuevas refused to answer the prosecutor's first question, which inquired as to his age. The Court excused the jury, and determined that Mr. Cuevas would refuse to answer any question other than the identity of his attorney, Mr. Stephen Jay Golembe. The Court recessed so that Mr. Golembe could be notified; Mr. Golembe appeared in court and requested time to meet with Mr. Cuevas. The Court granted this request. Approximately an hour later it was requested that the Court recess the trial until after lunch, thus giving counsel more time to confer with Mr. Cuevas. The Court agreed, and recessed the case until after lunch.
The Court takes judicial notice that Mr. Cuevas had entered into a Plea Agreement with the government in Case No. 2:04-cr-16-FTM-29DN in which he agreed to testify on behalf of the government. Mr. Cuevas was sentenced on October 12, 2004 to 63 months imprisonment with the benefit of a three level reduction based upon substantial assistance. Mr. Cuevas thereafter testified at a sentencing hearing regarding co-defendants in that case. On June 16, 2005, the government filed a Rule 35 motion, and on July 11, 2005, the Court reduced Mr. Cuevas's sentence to 57 months imprisonment.
After the lunch recess, the government called Mr. Cuevas as a witness in open court but outside the presence of the jury. Mr. Cuevas answered three questions, then stated that was all he was going to say. The prosecutor then asked seven additional questions, and Mr. Cuevas would not answer any of them. The questions asked are set forth in the partial transcript of the proceedings, a copy of which is attached to this order. Neither Mr. Cuevas nor his counsel proffered any justification for the refusal to answer the questions. The Court found that there was no justification or excuse for Mr. Cuevas not to answer the question, and ordered Mr. Cuevas to answer the prosecutor's questions. Mr. Cuevas refused, and the Court found Mr. Cuevas in contempt of court for his wilful refusal to answer the questions after being ordered to do so by the Court. The Court then heard argument of counsel as to punishment, and imposed a sentence of six months in the custody of the Bureau of Prisons, to be served consecutively to the sentence Mr. Cuevas is currently serving. The undersigned certifies pursuant to Federal Rule of Criminal Procedure 42(b) that he saw and heard the contemptuous conduct committed in open court.
Accordingly, it is now
ORDERED:
1. Luis Cuevas is adjudicated to be in contempt of court for wilfully failing to answer questions propounded by the Assistant United States Attorney on April 19, 2006, in the above captioned case without any justification or excuse.
2. Luis Cuevas is sentenced to the custody of the Bureau of Prisons for a term of six (6) months, to be served consecutively to the sentence imposed in Case No. 2:04-cr-16-FTM-29DNF.
3. A copy of the Opinion, Order and Judgment of Contempt shall be placed in the court file in Case No. 2:04-cr-16-FTM-29DNF as well as filed in the above captioned case.
DONE AND ORDERED.