Cohen v. United States , 53 F. App'x 286 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In the Case of: STANLEY L. COHEN, 
STANLEY L. COHEN,
Appellant,  No. 02-4443
v.
UNITED STATES OF AMERICA,
Plaintiff-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CR-01-226)
Submitted: November 27, 2002
Decided: December 23, 2002
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Patrick E. Brown, BROWN & WEINRAUB, L.L.C., Albany, New
York, for Appellant. Paul J. McNulty, United States Attorney, Ste-
phen W. Haynie, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
2 IN THE CASE OF: COHEN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Stanley Cohen appeals his conviction and sentence for contempt of
court in violation of 18 U.S.C. § 401 (2000).* Finding no error, we
affirm.
Cohen first challenges the sufficiency of the evidence to support
the district court’s finding of criminal contempt. To determine
whether there was sufficient evidence to support a conviction, this
Court considers whether, taking the evidence in the light most favor-
able to the government, any reasonable trier of fact could have found
the defendant guilty beyond a reasonable doubt. Glasser v. United
States, 315 U.S. 60, 80 (1942). This Court does not weigh the evi-
dence or determine the credibility of the witnesses. Rather, the verdict
must be upheld if there is substantial evidence to support the verdict.
Id.; United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994). A
defendant challenging the sufficiency of the evidence to support his
conviction faces a heavy burden. United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997). With these standards in mind, we find the
evidence was sufficient to support Cohen’s contempt conviction.
Cohen next contends the district court denied him due process in
several respects. Because Cohen failed to raise these issues before the
district court, review is for plain error. See United States v. Olano,
507 U.S. 725, 731-32 (1993). Under the plain error standard, Cohen
must show: (1) there was error; (2) the error was plain; and (3) the
error affected substantial rights. Id. If these three elements are met,
this court may exercise its discretion to notice the error only if the
*Although neither the show cause order nor the district court’s final
order identify a specific statute, the parties agree Cohen was held in
criminal contempt. Moreover, it is clear from the record that Cohen was
specifically found to be in violation of § 401(3).
IN THE CASE OF: COHEN 3
error "seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings." Id. We find no plain error.
Finally, Cohen contends the district court judge testified at his con-
tempt hearing, in violation of his due process rights and Fed. R. Evid.
605. Although Cohen failed to object at the contempt hearing, Rule
605 does not require contemporaneous objection. Fed. R. Evid. 605.
Thus, review is for harmless error. See Fed. R. Crim. P. 52(a). We
find this argument to be without merit. The district court judge did not
testify at Cohen’s proceeding, but merely exercised his common law
power to explain, summarize and comment on the facts and evidence,
and his power under Fed. R. Evid. 614 to question witnesses. Thus,
Fed. R. Evid. 605 is inapplicable. See United States v. Paiva, 892
F.2d 148, 158-59 (1st Cir. 1989) (citing Fed. R. Evid. 605 advisory
committee’s note).
Accordingly, we affirm Cohen’s conviction. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED