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Fulgham v. Turner

United States District Court, M.D. Alabama, Northern Division

April 3, 2018

CODY LEE FULGHAM, # 65914 Plaintiff,
v.
KIM TURNER, et al., Defendants. CODY LEE FULGHAM, # 65914 Plaintiff,
v.
ANDY HUGHES, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS, CHIEF UNITED STATES DISTRICT JUDGE

         On January 10, 2018, the Magistrate Judge entered an Order (Doc. # 52) denying Plaintiff Cody Lee Fulgham's motion (Doc. # 50) for contempt. On January 22, 2018, Plaintiff filed an objection (Doc. # 54) to the Magistrate Judge's January 10, 2018 Order. After an independent and de novo review of those portions of the Recommendation to which objection is made, Plaintiff's objection is due to be overruled because the Magistrate Judge's January 10, 2018 Order is free of clear error and is not contrary to law. See Fed. R. Civ. P. 72(a) (providing that, upon review of an objection to the order of a magistrate judge concerning a nondispositive matter, “the district judge . . . must . . . modify or set aside any part of the order that is clearly erroneous or is contrary to law”).

         I. DISCUSSION

         Criminal contempt[1] for perjury generally requires a showing of intent to obstruct justice by committing perjury and that justice was, in fact, obstructed. 18 U.S.C. § 401(1)[2] (“A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as . . . [m]isbehavior of any person in its presence or so near thereto as to obstruct the administration of justice.”); United States v. Wright, 854 F.2d 1263, 1264 (11th Cir. 1988) (affirming as a “correct statement of the law” the district court's jury instruction stating that the elements of criminal contempt under § 401(1) are “first, that the defendant did misbehave as described in the indictment; second, that the defendant's actions occurred in the presence of a court of the United States; third, that the defendant's actions caused the obstruction of the administration of justice; and fourth, that the defendant acted knowingly and willfully” (emphasis omitted)); In re Rice, 181 F. 217, 228 (C.C.M.D. Ala. 1910) (“No one can be punished for a criminal contempt unless the evidence makes it clear that he intended to commit it. To doubt is to be resolved in favor of respondent.”). Cf. United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989) (holding that, “[i]n criminal contempt, willfulness means a deliberate or intended violation, as distinguished from an accidental, inadvertent, or negligent violation of an order” (citation and internal quotation marks omitted)).

         The elements of the crime of perjury pursuant to 18 U.S.C. § 1621 (as opposed to criminal contempt) are as follows: “(1) an oath authorized by a law of the United States, (2) taken before a competent tribunal, officer or person, and (3) a false statement wilfully made as to facts material to the hearing.” United States v. Hvass, 355 U.S. 570, 574 (1958) (citation and internal quotation marks omitted).

         All Plaintiff presents in support of his allegations of criminal contempt and perjury are two affidavits that allegedly conflict with each other and/or with other evidence of record, evidence that was submitted by Defendant Brazier. The mere fact that two affidavits may conflict with each other or with other evidence does not, in and of itself, establish willful contempt and perjury as opposed to, for example, mistake, inadvertence, or excusable neglect. It is not readily apparent from the face of Defendant Brazier's affidavits that a conflict exists or that any conflict or ambiguity is the result of criminal intent to obstruct justice or commit perjury by willfully and intentionally making false statements of material fact.[3]

         The fact that Defendant Brazier submitted Plaintiff's appeal forms tends to undermine any suggestion that Defendant Brazier was attempting to obstruct justice or misrepresent material facts about the existence of the appeal forms or their contents. In any event, justice will not be obstructed because Plaintiff has apprised the Magistrate Judge of the ambiguities and potential conflicts in Defendant Brazier's affidavits and the record on summary judgment, and the Magistrate Judge has stated that he will consider all the evidence and, “if necessary, . . . disregard portions of conflicting affidavits.” (Doc. # 52.) Moreover, denial of Plaintiff's motion for criminal contempt at this stage does not preclude the Magistrate Judge from sua sponte initiating criminal or civil contempt procedures if further review on summary judgment suggests or confirms perjury or obstruction by any party.

         In sum, nothing in the record, Plaintiff's motion or objection, or the Magistrate Judge's January 10, 2018 Order indicates that the Magistrate Judge abused his discretion, committed clear error, or erred as a matter of law in denying Plaintiff's motion for criminal contempt. 18 U.S.C. § 401 (providing that “[a] court of the United States shall have power to punish” criminal contempt “by fine or imprisonment, or both, at its discretion”).

         II. CONCLUSION

         Accordingly, it is ORDERED:

         1. Plaintiff's objection (Doc. # 54) to the Magistrate Judge's January 10, 2018 Order (Doc. # 52) is OVERRULED.

         2. This action is referred back to the Magistrate Judge for further proceedings. DONE this 3rd day of April, 2018.

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