United States District Court, S.D. New York
April 13, 2004.
SECURITIES AND EXCHANGE COMMISSION, Plaintiff
JOSEPH BREMONT, et al., Defendants
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
On December 2, 2002, this Court found Joseph Bremont in civil
contempt for willful failure to pay any portion of the judgment herein
and directed his incarceration pending payment. The incarceration aspect
of the order, however, repeatedly was stayed to permit Bremont to make
and then litigate a motion to vacate the finding of contempt or to modify
the sanction imposed. That motion finally was made on January 29, 2003. A
hearing was held on April 22, 2003, at which time the motion was denied,
the stay of the incarceration provision of the December 2, 2002 order
vacated, and Bremont remanded. On November 4, 2003, the Court granted the
application of Bremont's counsel for leave to withdraw and appointed
David Cooper, Esq., as Bremont's counsel under the Criminal Justice Act.
The Court now is in receipt of two documents from Bremont: a letter
requesting replacement of Mr. Cooper and a purported petition for a writ
of habeas corpus, albeit a petition captioned in this case rather than as
an independent proceeding.
Inasmuch as Bremont is incarcerated and seeks to challenge his
incarceration by a proceeding which is either a petition for a writ of
habeas corpus or something in the nature of such a proceeding, the Court
is empowered to appoint counsel. See 18 U.S.C. § 3006A(a)(1);
Section 2255 Rules, Rule 8(c). As it is far from clear,
however, that Bremont is indigent, the appointment is without prejudice
to the Court's power to direct Bremont to reimburse the government for
the cost of this representation. Bremont's application to relieve Mr.
Cooper is granted, and the CIA attorney on duty on April 14, 2004 is
appointed counsel for Bremont in his place. The Court takes this action
without making any finding as to the purported justifications for this
action advanced by Bremont.
The purported petition for a writ of habeas corpus contends that
Bremont's incarceration violates his constitutional rights because he is
indigent and unable to purge himself of contempt by making the required payment. He contends also that his
incarceration prevents him from going to Florida to demand a speedy trial
on an indictment returned against him in the Middle District of Florida,
evidently in 2000.
Insofar as Bremont seeks his release on the ground that his alleged
indigency makes compliance with the consent judgment impossible and, in
consequence, his continued incarceration for civil contempt in order to
coerce that compliance unlawful, the issue is more properly raised as a
motion in this action than by a separate petition for a writ of habeas
corpus. The Court so treats it. At bottom, however, there is nothing in
Bremont's papers that the Court has not considered and found wanting
previously save for a conclusory reference to an alleged affidavit of
October 15, 2003, which does not appear on the docket in this case. Thus,
apart from the passage of time, there is no greater reason for the Court
now to conclude that Bremont is unable to pay than there was previously,
when it denied his motion. This application too therefore is denied,
although it always is open to Bremont to make a properly supported motion
making an adequate evidentiary and legal showing.
Insofar as Bremont seeks his release on the ground that his
incarceration pursuant to the order of this Court somehow is interfering
with the prompt disposition of the indictment pending against him in
Florida, he has come to the wrong court. The United States District Court
for the Middle District of Florida has full power to rule on any speedy
trial application Bremont may make, to appoint (if it has not already
appointed) counsel to represent him, and otherwise to take all actions
that may be necessary to protect Bremont's rights. Thus, that aspect of
his purported petition is denied as well.
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