In the

United States Court of Appeals

For the Seventh Circuit

No. 16-1297

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHINYERE ALEX OGOKE,

Defendant.

APPEAL OF: MICHAEL I. LEONARD, Attorney

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 13 CR 00105-2 — Ronald A. Guzmán, Judge.

ARGUED MARCH 27, 2017 — DECIDED JUNE 22, 2017

Before BAUER and EASTERBROOK, Circuit Judges, and

DEGUILIO,

* District Judge.

*

 Of the United States District Court for the Northern District of Indiana,

sitting by designation. 
2 No. 16-1297

BAUER, Circuit Judge. Attorney Michael Leonard was

convicted of contempt under 18 U.S.C. §§ 401(1) and (3) after

he made a closing argument, in violation of the district court’s

written order, regarding a witness who did not testify at trial.

He appeals his conviction on both substantive and procedural

grounds. We affirm.

I. BACKGROUND

On February 26, 2013, Leonard was appointed under the

Criminal Justice Act to defend Chinyere Ogoke, who had been

charged with two counts of wire fraud. On May 6, 2015,

Ogoke’s codefendant Matthew Okusanya entered into a

cooperation plea agreement with the government. Ogoke

proceeded to trial on July 13, 2015, represented by Leonard and

pro bono co–counsel, Robert Robertson. 

On May 4, 2015, the government filed a motion in limine

seeking to prohibit the defense from introducing any evidence

or making any argument related to potential witnesses not

called to testify at trial. On May 13, 2015, Judge Ronald

Guzmán entered an order stating that “unless there is a

showing that the missing witness is peculiarly within the

government’s control, either physically or in a pragmatic sense,

Defendant is precluded from commenting on the government’s

failure to call any witness.” The order further stated that if

such a showing were made, counsel must petition the court

before making any comment or argument regarding the

missing witness.

It was the government’s theory at trial that Ogoke and

Okusanya were coconspirators in a fraud scheme. Okusanya

appeared on the government’s witness list, but the government
No. 16-1297 3

decided not to call him during trial. During his closing argument, Leonard said the following: 

Now, according to the government, Mr. Okusanya was intimately involved in the scam,

right? Matthew Okusanya was intimately involved in the scam. He did all sorts of things. ...

[B]ut ask yourselves about the testimony you

heard from here in the case, which is your

evidence. Matthew Okusanya didn’t say one

word about Alex Ogoke. Wouldn’t you think if

Matthew Okusanya was a grand schemer with

Alex Ogoke that he would have some evidence,

some? ... [H]e’s the guy. Do you remember?

He’s working in cahoots, according to the government, with Alex Ogoke. Not one word from

Matthew Okusanya during the trial about Alex

Ogoke. That’s strange. Now, the government

could get back up and say: Mr. Leonard could

call Mr. Okusanya as a witness. Remember the

instruction. We don’t have to raise a finger. They

have to prove Alex Ogoke guilty beyond a

reasonable doubt. We don’t have to call witnesses to say they won’t say something. If the

government had something from Okusanya to

support the idea that this guy did it, you would

have heard from the grand schemer, Mr. Okusanya.

At this point, the government objected; Judge Guzmán

sustained the objection and struck that portion of the argu-
4 No. 16-1297

ment. After closing arguments, Judge Guzmán adjourned the

trial for the weekend.

The following Monday, before the jury returned a verdict,

Judge Guzmán issued an order to show cause as to why

Leonard should not be held in contempt for violating the

court’s ruling on missing witness arguments. The same day,

the jury found Ogoke not guilty on all counts. 

The government sent a letter to the court seeking to recuse

itself from the contempt proceeding “because this office has

other pending matters with Mr. Leonard and the contempt

proceeding arises in a trial that our office handled with

Mr. Leonard that resulted in an acquittal.” Based on those

conflicts, the government asked that the court appoint another

attorney to prosecute the contempt charge.

On August 26, 2016, Judge Guzmán held a hearing on the

order to show cause. Leonard was represented by counsel,

but no prosecutor was appointed. When the hearing began,

Judge Guzmán asked if Leonard had any questions about the

charges; his counsel responded that he did not. Judge Guzmán

then asked how Leonard wished to proceed. Leonard’s counsel

explained that he would like to make a brief opening remark

and then call Leonard and Robertson to testify. Judge Guzmán

then took judicial notice of the entire record of proceedings of

the case, and Leonard’s counsel began presenting his defense.

Leonard testified that, after initially reviewing the order on

missing witnesses when it was issued, he failed to review it

again during the trial or prior to his closing argument. He

stated that, during his closing, he had not realized he violated

the ruling, but later acknowledged that he had made a “huge
No. 16-1297 5

mistake.” He testified that the mistake was unintentional and

that he did not willfully violate the order. Robertson testified

that the issue of the missing witness ruling did not come up

while he and Leonard were preparing for closing arguments.

He stated that if he had realized the argument regarding

Okusanya would have violated the court’s ruling, he would

not have allowed his trial partner to make it. Leonard’s counsel

then gave a brief summary of the testimony and Leonard’s

position, and the court adjourned the hearing.

On September 17, 2015, Judge Guzmán issued a written

order holding Leonard in contempt and ordering him to pay a

$300 fine. He noted that Leonard was represented by counsel

at the hearing, “who was afforded an opportunity to present

evidence and argument in any form or manner he wished.”

Judge Guzmán found incredible Leonard’s argument that he

forgot about the order and that his violation was unintentional.

That finding was based on Leonard’s extensive experience

as a defense attorney; a discussion between Leonard and

Judge Guzmán at the pretrial conference about the government’s missing witness motion in limine; and a specific line

of cross–examination that Judge Guzmán believed Leonard

used to lay the groundwork for his closing argument.

Judge Guzmán held, therefore, that Leonard’s conduct was

intentional and found him in contempt under 18 U.S.C.

§§ 401(1) and (3).

On September 25, 2015, Leonard moved to stay the contempt order while his new counsel evaluated arguments for

reconsideration or appeal. Judge Guzmán granted the motion,

extending the time to file a motion for reconsideration or a

notice of appeal until October 20, 2015. Leonard filed a motion
6 No. 16-1297

to vacate the order on that date, arguing that the court failed to

follow the correct procedures under Federal Rule of Criminal

Procedure 42; that he was not given proper notice of the

specific conduct in question and the specific evidence to be

used against him; and that the evidence was insufficient to

support his conviction.

Judge Guzmán denied Leonard’s motion to vacate on

February 4, 2016. On February 12, 2016, Leonard filed a notice

of appeal, seeking review of both the contempt order and the

denial of his motion to vacate. Due to the government’s

recusal, we appointed counsel to act as amicus curiae and

defend the district court’s orders on appeal.

II. DISCUSSION

A. Jurisdiction and Timeliness of Appeal 

On appeal, Leonard raises a number of challenges to both

the original contempt order and the denial of his motion to

vacate. He filed his notice of appeal, however, well after the

14–day deadline from the entry of the original contempt order.

Thus, as an initial matter, we must determine whether we have

jurisdiction to review both orders, or whether our review is

limited to the denial of the motion to vacate.

First, we note that the time limit for filing an appeal in a

criminal case, while mandatory, is not jurisdictional. United

States v. Rollins, 607 F.3d 500, 501 (7th Cir. 2010). Moreover, “a

motion for reconsideration presenting a substantive challenge

to the decision ... makes a district judge’s order non–final and

postpones the time for appeal until entry of the order on that

motion.” Id.
No. 16-1297 7

Here, Leonard’s filings occurred within the appropriate

time periods and ultimately presented a substantive challenge

to the initial order, such that the decision on that order was not

final until the court denied Leonard’s motion to vacate.

Leonard moved to stay the contempt order eight days after it

was issued. The court granted that motion and extended the

time in which Leonard could file a motion for reconsideration

or a notice of appeal. Leonard also met that deadline with the

filing of his motion to vacate. As described above, that motion

clearly presented substantive challenges to the contempt order.

Thus, Leonard had 14 days from entry of the order denying

that motion, which was the final order, to file his notice of

appeal. Because he met that deadline, his appeal was timely as

to both the original contempt order and the denial of his

motion to vacate. We will, therefore, review all of Leonard’s

challenges to both orders.

B. Sufficiency of the Evidence

We first address Leonard’s contention that there was

insufficient evidence to support his conviction. When reviewing a sufficiency challenge, we view the facts in the light most

favorable to the prosecution, in this case the district court, and

“ask whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Salinas, 763 F.3d 869, 877 (7th Cir. 2014) (citing

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). If the record

presents a reasonable basis for the conviction, it must stand.

United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000). 

A court may find a person in contempt under 18 U.S.C.

§ 401(1) for “[m]isbehavior ... in its presence or so near thereto
8 No. 16-1297

as to obstruct the administration of justice[.]” A conviction

under this section requires proof of an intentional and objective

obstruction to the administration of justice. United States v.

Griffin, 84 F.3d 820, 832 (7th Cir. 1996) (citing United States v.

Seale, 461 F.2d 345, 367–68 (7th Cir. 1992)). Section 401(3) allows

for a finding of contempt for “[d]isobedience or resistence to [a

court’s] lawful writ, process, order, rule, decree, or command.”

18 U.S.C. § 401(3). A contempt conviction under this subsection

requires proof that the violation of the court’s order was

willful. Doe v. Maywood Hous. Auth., 71 F.3d 1294, 1297 (7th Cir.

1995). As is true for other substantive criminal offenses,

criminal contempt must be proved beyond a reasonable doubt.

Griffin, 84 F.3d at 831–32.

Here, Judge Guzmán found Leonard guilty of contempt

under both §§ 401(1) and (3). Leonard argues that there was

insufficient evidence to show that he intentionally violated the

court’s order, which is an essential element for a conviction

under both sections. In addition, specifically as to § 401(1), he

argues that there was insufficient evidence to show objectively

that his violation constituted an obstruction of justice. However, as demonstrated below, because we find the evidence

sufficient to sustain his conviction under § 401(3), we need not

address the obstruction argument. See Griffin, 84 F.3d at 833

(“A violation of § 401(3) requires only willful disobedience of

a court order,” whereas § 401(1) requires both subjective intent

and objective obstruction of justice).

Leonard does not deny that he violated a clear order from

the court. Thus, the only remaining question is whether there

was evidence of his willfulness sufficient to sustain his

conviction under § 401(3). The original contempt order
No. 16-1297 9

explicitly stated that Judge Guzmán did not find credible

Leonard’s testimony that he forgot that the argument would be

improper. The order highlighted three reasons that supported

that finding.

First, Judge Guzmán noted that he and Leonard engaged

in an extended conversation about the motion in limine at the

pretrial conference. Second, he found that, based on Leonard’s

extensive experience as a defense lawyer, Leonard should have

been generally aware of the rule that counsel may not argue an

adverse inference from an opposing party’s failure to call a

witness, absent a showing that the witness was available only

to that party. See, e.g., Oxman v. WLS-TV, 12 F.3d 652, 661 (7th

Cir. 1993). 

Finally, contrary to Leonard’s contention at the hearing that

he first considered and prepared the improper argument the

night before his closing, Judge Guzmán found that Leonard

laid the groundwork for his improper argument with a

specific line of questioning during the trial. During his crossexamination of a special agent of the Office of the Inspector

General, Leonard elicited testimony that the agent had numerous conversations with Okusanya within the past 60 days.

Leonard also referred to Okusanya as an “important character”

during this line of questioning. In his motion to vacate,

Leonard argued that when he pursued this line of questioning,

he still believed the government would call Okusanya as a

witness. Judge Guzmán rejected that argument, however, and

found that Leonard was attempting to demonstrate to the jury

that Okusanya was available to government agents should

they have wanted him to testify.
10 No. 16-1297

In our view, these factual findings provided Judge Guzmán

with a sufficient basis to determine that Leonard’s violation

of the order was not an accident or a mistake. Moreover, the

ultimate finding that Leonard acted willfully hinges on

Judge Guzmán’s credibility determination, to which we must

defer. See Griffin, 84 F.3d at 832 (“We defer to the district

judge’s credibility determinations because of his familiarity

with the record and his ability to personally observe the

demeanor of the contemnor.”). Therefore, we find that there

was sufficient evidence to support Leonard’s conviction under

18 U.S.C. § 401(3). 

C. Use of Procedures Under Rule 42

Leonard’s next argument is that Judge Guzmán committed

reversible error by failing to comply with the procedures set

forth by Federal Rule of Criminal Procedure 42. Though not

explicitly stated in the show cause order or the original

contempt order, the order denying the motion to vacate

made clear that Judge Guzmán had operated pursuant to

the summary procedures of Rule 42(b). Leonard contends that

this was error and that Judge Guzmán could have proceeded

properly only under Rule 42(a). He also argues that because

Judge Guzmán afforded him a hearing, he erred by not

appointing a prosecutor.

We review for an abuse of discretion a district court’s

decision on whether to proceed under Rule 42(a) or 42(b).

Griffin, 84 F.3d at 829. Rule 42(a) provides that “[a]ny person

who commits criminal contempt may be punished for that

contempt after prosecution on notice.” Fed. R. Crim. P. 42(a).

The notice must state the time and place of the trial, allow a
No. 16-1297 11

reasonable time to prepare a defense, and “state the essential

facts constituting the charged criminal contempt and describe

it as such.” Fed. R. Crim. P. 42(a)(1). Subsection (a) also

requires the court to request that the government prosecute the

contempt, and if the government declines, “the court must

appoint another attorney” to do so. Fed. R. Crim. P. 42(a)(2).

Rule 42(b), however, states that “[n]otwithstanding any other

provision of these rules, the court ... may summarily punish a

person who commits criminal contempt in its presence if the

judge saw or heard the contemptuous conduct and so certifies[.]” Fed. R. Crim. P. 42(b).

Leonard’s first argument, that Judge Guzmán erred by

proceeding under Rule 42(b), fails upon review of the rule’s

plain text. It is undeniable that the contemptuous conduct—the improper argument regarding Okusanya—occurred

in Judge Guzmán’s presence. Because he observed Leonard

violate the order, Judge Guzmán was not required to afford

him any of the process set forth in subsection (a); he could have

held Leonard in contempt on the spot. See Griffin, 84 F.3d at 829

(noting that, because contemptuous conduct occurred in court

during a criminal trial, the district court had the authority to

act summarily under Rule 42).

Leonard disagrees and cites United States v. Moschiano, 695

F.2d 236 (7th Cir. 1982), as support. There, we held that “resort

to summary disposition of criminal contempt under [then

Rule 42(a), now Rule 42(b)] is permissible only when the

express requirements of the rule are met and when there is a

compelling reason for an immediate remedy or time is of the

essence.” Id. at 251 (quotation marks omitted). Leonard

contends that there was no compelling reason for an immedi-
12 No. 16-1297

ate remedy in this case, as evidenced by Judge Guzmán’s

decision to wait until after the trial concluded to issue

the show cause order. Therefore, because he did not hold

Leonard in contempt in the middle of the closing argument,

Judge Guzmán improperly relied on subsection (b), and

Leonard should have been afforded the full process set forth

in subsection (a).

That argument, however, conflates the need for an immediate remedy with the need for an immediate finding of contempt. Moschiano does not, nor does any other case Leonard

cites, stand for the proposition that Rule 42(b) is only appropriate if the court makes an immediate finding of contempt once

the contemptuous act has been committed. In fact, the Supreme

Court has held that while a judge has the ability to immediately and summarily punish contemptuous conduct, “if he

believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing

his power.” Sacher v. United States, 343 U.S. 1, 11 (1952); see also

Griffin, 84 F.3d at 830. Moschiano’s holding simply means that

once the textual requirements of Rule 42(b) are met, there must

also be a showing that there was an immediate need to remedy

the contemptuous conduct. See Moschiano, 695 F.2d at 251–52.

Here, Judge Guzmán did provide an immediate remedy to

the conduct by granting the government’s objection and

striking the improper argument from the jury’s consideration.

The fact that he chose not to interrupt the trial by holding

Leonard in contempt during his closing argument does not

mean that it was inappropriate for him subsequently to

proceed summarily under Rule 42(b). See Sacher, 343 U.S. at 11.
No. 16-1297 13

Leonard then argues that because Judge Guzmán afforded

him a hearing to present testimony in his defense, he was also

required to follow the strict requirements of Rule 42(a),

specifically to appoint a prosecutor. As we have demonstrated,

however, the court was justified in proceeding summarily

under subsection (b). Thus, he was not required even to

provide Leonard with the opportunity to be heard, much less

to appoint an independent prosecutor. We do not believe that

by affording Leonard some additional process—to which he

was not otherwise entitled—Judge Guzmán forfeited his ability

to proceed under Rule 42(b). See United States v. Lowery, 733

F.2d 441, 447–48 (7th Cir. 1984) (indicating that a judge may

employ the summary procedure of Rule 42 while still providing some additional process, such as a brief hearing).1

D. Due Process Challenge 

Leonard’s final argument is that Judge Guzmán violated

his due process rights by failing to give him adequate notice

of the evidence to be used against him. Specifically, he argues

that the order should have notified him that Judge Guzmán

intended to rely on the transcript from the pretrial hearing and

the cross–examination of the special agent as evidence of

1

 Leonard separately argues that by appointing amicus curiae for this

appeal, this Court compounded the district court’s error of failing to

appoint a prosecutor. Specifically, he contends that by directing amicus to

defend the district court’s orders, we removed “the neutrality and

independence required of an independent prosecutor under Rule 42(a).”

Again, however, this argument is premised on the rejected proposition that

proceeding under Rule 42(a) would have been the only proper course.

Therefore, we find no merit in this argument and no error in our decision

to appoint amicus. 
14 No. 16-1297

his willful contempt. Again, because this challenge turns on

Judge Guzmán’s decision of the appropriate procedures under

Rule 42, we review it for an abuse of discretion. Griffin, 84 F.3d

at 829. 

Leonard’s due process argument fails for a number of

reasons. First, as demonstrated by our analysis above,

Judge Guzmán was justified in proceeding summarily under

Rule 42(b). Thus, by the plain language of the rule, Leonard

was not entitled to any specific notice of the charges or the

evidence, as might be required under subsection (a). There can

be no due process violation for inadequate notice if no such

notice was required in the first instance. 

However, even if Judge Guzmán were required to provide

Leonard notice of the charges and evidence against him, we

believe he did so adequately. In this context, we have held that

in order to satisfy due process, the notice need only “state the

essential facts constituting the contempt charged[.]” United

States v. Ray, 683 F.2d 1116, 1126 (7th Cir. 1982). Judge Guzmán’s order to show cause met that standard. It clearly set

forth, in detail, the order granting the government’s motion

in limine on the missing witness issue. It then stated that “[i]n

direct violation of the Court’s order, during closing argument

in the instant trial, defense counsel expressly argued an

adverse inference from the government’s failure to call a

witness, namely Matthew Okusanya[,]” which constituted a

violation of 18 U.S.C. §§ 401(1)–(3). That description of the

conduct and the charged violations was sufficient to satisfy

due process. 
No. 16-1297 15

Leonard contends that because Judge Guzmán did not

specifically state that he intended to examine Leonard’s

conduct at the earlier phases of the trial, he was not able to

adequately prepare his defense. We find that argument

unpersuasive. It is clear, both from his admission that he

violated the order and from the defense he presented in

his testimony (i.e., that he had forgotten about the order), that

Leonard was aware that the issue most crucial to his guilt or

innocence was whether his violation was intentional. Thus, it

should have also been clear to Leonard that, to determine

intent, it would be necessary for Judge Guzmán to consider

Leonard’s actions leading up to the violation. Additionally, at

the start of the hearing, Judge Guzmán asked if Leonard had

any questions about the charges in the show cause order, and

his counsel stated that he did not. Judge Guzmán then took

judicial notice of the entire trial record, and counsel presented

no objection. 

Moreover, any potential prejudice that Leonard faced by

initially failing to understand the evidence to be used against

him was cured through his motion to vacate and the denial of

that motion. Leonard raised this exact argument in his motion

to vacate and specifically presented an alternative explanation

for the line of cross–examination, in rebuttal to the finding that

those questions were an indication of his intent to violate the

order. Thus, Judge Guzmán ultimately had the opportunity

to consider all of Leonard’s arguments, which he rejected. 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the conviction.