IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

 v.

JONATHAN M. WALTMAN,

Defendant.

:

:

:

:

:

Criminal Action 2:12-cr-117

Judge Gregory L. Frost

Magistrate Judge Elizabeth P. Deavers

REPORT AND RECOMMENDATION

and 

CERTIFICATION OF FACTS FOR CONTEMPT

After reviewing Defendant’s request for an attorney under the Criminal Justice Act,

(“CJA”), 18 U.S.C. § 3006A, and his corresponding affidavit reflecting his financial resources,

on April 25, 2012, the Court ordered Defendant to make $100 payments on a monthly basis,

made payable to the Clerk for deposit with the Treasury, beginning on May 1, 2012 and on the

first day of each month thereafter until judgment is entered in this case. (ECF No. 10.) The

Court specifically indicated that it had reviewed Defendant’s Financial Affidavit in support of his

application for an attorney under the CJA and noted that he has a substantial savings and stock

investments. (See CJA 23, Financial Affidavit, ECF No. 4 (sealed).) This matter is before the

Court sua sponte for a Report and Recommendation and Certification of Facts regarding

contempt. For the reasons that follow, it is RECOMMENDED that a show cause order be

issued to Defendant Jonathan M. Waltman to appear before the District Judge on a date certain

and show cause why he should not be held in contempt of this Court.

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I. MAGISTRATE JUDGE’S AUTHORITY REGARDING CONTEMPT

Section 636(e) of the United States Magistrate Judges Act governs the contempt authority

of magistrate judges. 28 U.S.C. § 636(e)(1) (“A United States magistrate judge serving under this

chapter shall have within the territorial jurisdiction prescribed by the appointment of such

magistrate judge the power to exercise contempt authority as set forth in this subsection.”) The

statute sets out the criminal contempt authority of a magistrate judge and the scope of his or her

civil contempt authority in civil consent and misdemeanor cases. Because this case arises as a

felony matter and the facts do not give rise to a finding of summary criminal contempt for

misbehavior of the Defendant in the undersigned’s presence, Section 636(e)(6)(B) controls.

Section 636(e)(6) of the United States Magistrate Judges Act provides that when a person

commits an act in a proceeding before a magistrate judge under 28 U.S.C. § 636(a) or (b), or any

other statute which may constitute civil contempt: 

[T]he magistrate judge shall forthwith certify the facts to a district judge and may

serve or cause to be served, upon any person whose behavior is brought into question

under this paragraph, an order requiring such person to appear before a district judge

upon a day certain to show cause why that person should not be adjudged in contempt

by reason of the facts so certified. The district judge shall thereupon hear the evidence

as to the act or conduct complained of and, if it is such as to warrant punishment,

punish such person in the same manner and to the same extent as for a contempt

committed before a district judge.

28 U.S.C. § 636(e)(6)(B)(iii). A contempt committed in “a proceeding before a magistrate

judge” includes not only a contempt committed in the magistrate judge’s presence, but also a

contempt related to proceedings before the magistrate judge. United States v. Ivie, No. 05-

234MAV, 2005 WL 1759727 (W.D. Tenn. 2005) (citing Taberer v. Armstrong World Indus.,

Inc., 954 F.2d 888, 901 n.17 & 902 n.19 (3d. Cir. 1992). In a proceeding before a magistrate

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judge, disobedience to any lawful order may constitute contempt. 28 U.S.C. § 636(e).1

II. CERTIFIED FACTS

The facts regarding this Report and Recommendation are simple and straightforward. On

November 10, 2011, a criminal complaint was filed against Defendant for allegedly receiving

child pornography in interstate commerce in violation of 18 U.S.C. § 2252(a)(2).2 In association

with the Complaint, Defendant requested that the Court appoint him an attorney and submitted a

Financial Affidavit. On his Financial Affidavit, Defendant disclosed that he had a substantial

amount of cash on hand as well as stocks, mutual funds, and income from dividends. Originally,

the undersigned conditionally appointed counsel to represent Defendant but indicated if he had the

ability to make monthly payments towards the expense of appointing counsel, he would be

required to do so. (ECF No. 5.) On April 25, 2012, having conferred with Pretrial Services

regarding Defendant’s financial situation and after reviewing his Financial Affidavit, the

undersigned ordered Defendant to pay a modest amount of $100 per month towards his

representation under the CJA beginning on May 1, 2012. (Order, 4/25/12, ECF No. 10.) 

According to the Court’s Financial Division, Defendant has failed to make the required payments

for the months of May, June, July, and August. Indeed, he has never made a single payment nor

1

The magistrate judge’s role on a motion for contempt in non-consent cases is to certify

facts relevant to the issue of contempt to the district judge. See, e.g., Intl’l Brotherhood of

Elec. Workers, Local 474 v. Eagle Elec. Co., Inc., No. 06–2151, 2007 WL 622504, at *1,

n.1 (W.D. Tenn. Feb.22, 2007); NXIVM Corp. v. Bouchey, No. 1:11–mc–0058, 2011 WL

5080322, at *3 (N.D.N.Y. Oct.24, 2011) (and cases cited therein).

2

Defendant has since pleaded guilty pursuant to an information charging him with

knowingly possessing visual depictions of child pornography in interstate commerce in

violation of 18 U.S.C. § 2252(a)(4).

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sought relief from this Court from his obligation to do so.

III. ANALYSIS

A. Allocation of Costs for Representation Under Civil Justice Act

Defendant sought and obtained court-appointed counsel under the Criminal Justice Act

(“CJA”), 18 U.S.C. § 3660A. Under the terms of the CJA, the Court has a duty to make

appropriate inquiry into Defendant’s financial condition. 18 U.S.C. § 3006A(b). For purposes

of the CJA, financial inability does not mean indigence; a defendant need not be destitute to

qualify for appointment of counsel. See United States v. Quinlan, 223 F. Supp. 2d 816, 817

(E.D. Mich. 2002) (“Financial inability . . . does not mean indigency, but an inability to pay for

counsel.”) Based on the information Defendant provided in his Financial Affidavit, the Court

found that Defendant was qualified for the appointment of counsel under the CJA.

Nevertheless, the CJA contemplates that a defendant may, in some instances, be

financially able to contribute to his or her defense: 

If at any time after the appointment of counsel the United States magistrate judge or

the court finds that the person is financially able to obtain counsel or to make partial

payment for the representation, it may terminate the appointment of counsel or

authorize payment . . . as the interests of justice may dictate. 

18 U.S.C. § 3006A(c) (emphasis added); see also 7 Guide to Judiciary Policy, Chapter

2–Appointment and Payment of Counsel, § 210.40.40 (“[T]he judicial officer should find the

person eligible for the appointment of counsel under the CJA and should direct the person to pay

the available excess funds to the clerk of the court at the time of such appointment or from time to

time thereafter.”). 

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In this case, Defendant represented that he had assets including stocks and mutual funds in

excess of $10,000 in addition to monthly dividends. Moreover, he averred he had approximately

$10,000 in cash on hand. Under these circumstances, the undersigned found it just and

appropriate to require Defendant to make partial payments, on a monthly basis during the

pendency of the charges against him in this Court, to the Treasury of the United States for credit

to the Defender Services appropriation. 

B. Standard for Contempt for Failure to Obey Court Order

When a court seeks to enforce its order or supervise its judgment, one weapon in its

arsenal is contempt of court. See NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 588

(6th Cir. 1987). Recognizing that the power “to punish for contempts” should not be

used lightly, the Supreme Court has stated that this power “is a necessary and integral

part of the independence of the judiciary, and is absolutely essential to the

performance of the duties imposed on them by law. Without it they are mere boards

of arbitration, whose judgments and decrees would be only advisory.” Gompers v.

Buck’s Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 55 L.Ed. 797 (1911).

Contempt proceedings enforce the message that court orders and judgments are to be

complied with in a prompt manner. 

IBEW v. Gary’s Elec. Serv. Co., 340 F.3d 373, 378 (6th Cir. 2003). A party who has disobeyed

a court order may be held in civil contempt if it is shown, by clear and convincing evidence, that

the party “violated a definite and specific order of the court requiring [him or her] to perform or

refrain from performing a particular act or acts with knowledge of the court’s order.” Cincinnati

Bronze, 829 F.2d at 591 (quotation omitted). Once a prima facie case of contempt is established,

“the burden shifts to the contemnor who may defend by coming forward with evidence showing

that he is presently unable to comply with the court’s order.” Gary’s Elec. Serv. Co., 340 F.3d at

379. To satisfy this burden, “a defendant must show categorically and in detail why he or she is

unable to comply with the court’s order.” Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d 716,

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720 (6th Cir. 1996) (quotation omitted). The Court must also assess whether the defendant

“‘took all reasonable steps within [its] power to comply with the court’s order.’” Gary’s Elec.

Serv. Co., 340 F.3d at 379 (quoting Peppers v. Barry, 873 f.2d 967, 969 (6th Cir. 1989)). 

Turning to the instant matter, Defendant’s failure to make payments towards his CJA

representation after being directed to do so constitutes disobedience of a lawful court order and

thus amounts to contempt before the Magistrate Judge. The Court’s April 25, 2012 Order was

clear and unambiguous, as is the proof of Defendant’s noncompliance. Defendant has made no

attempt whatsoever to comply with the Order. Nor has he made any effort to be relieved from

his obligation to make such payments.

IV. CONCLUSION

For the foregoing reasons, it is RECOMMENDED that the District Judge issue a show

cause order to Defendant to appear at a date certain for a hearing during which Defendant should

show cause why he should not be held in contempt for failing to obey the undersigned’s April 25,

2012 Order requiring him to contribute to the costs of his defense. Further, it is

RECOMMENDED that Defendant be compelled to pay the $400 due and owing for his

representation for the months May, June, July, and August, and whatever additional sanctions the

District Judge deems appropriate for failing to obey a lawful Order of this Court.

DATE: August 7, 2012 s/ Elizabeth A. Preston Deavers 

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

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