United States of America v Kent Hovind (Contempt Order)

by United States District Court for the Northern District of Florida

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

In re: KENT E. HOVIND,

Misc. Case No. ________________ _______________________________/

NOTICE OF CRIMINAL CONTEMPT PROCEEDINGS AND SHOW CAUSE ORDER

On the Government’s motion in United States v. Hovind, 3:06cr83 (N.D. Fla.), the Court has found cause to initiate criminal contempt proceedings against Kent E. Hovind. Therefore, pursuant to the Court’s inherent and statutory contempt power, criminal contempt proceedings are hereby initiated against Kent E. Hovind on the Government’s charge that he willfully violated an injunction order of this Court. See 18 U.S.C. § 401(3); Fed. R. Crim. P. 42(a).

Criminal contempt need not be charged by indictment. See United States v. Cohn, 586 F.3d 844, 849 (11th Cir. 2009). Instead, a notice of criminal contempt initiates the proceedings, and the notice need only state the time and place of the trial, allow the defendant a reasonable time to prepare a defense, and state the essential facts constituting the charged criminal contempt and describing it as such. Fed. R. Crim. P. 42(a); see also Romero v. Drummond Co., 480 F.3d 1234, 1242-43 (11th Cir. 2007). Because criminal contempt proceedings are indeed criminal, a person charged with criminal contempt is entitled to the same constitutional protections due in all criminal proceedings. See Int’l Union, United Mine Workers^[1] of Am. v. Bagwell, 512 U.S. 821, 826-27 (1994). Thus, “‘[i]n proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and he cannot be compelled to testify against himself.’”^[2] Romero, 480 F.3d at 1243 (quoting Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444 (1911)) (internal marks omitted).

As required by Rule 42(a)(1)(C) of the Federal Rules of Criminal Procedure, the Court hereby provides notice of the essential facts constituting the charge of criminal contempt:

1. On November 2, 2006, Hovind was found guilty by a jury and convicted of multiple offenses involving his failure to pay federal taxes on behalf of employees of entities he owned and operated, namely, Creation Science Evangelism Enterprises/Ministry and Dinosaur Adventure Land, located in Pensacola, Florida, and the jury entered a money judgment of forfeiture.^[3] See United States v. Hovind, Case No. 3:06cr83-MCR (N.D. Fla.). Subsequently, upon finding that Hovind had transferred the currency to third parties, and after reviewing Hovind’s objections, real property was forfeited in partial substitution of the currency, with limitations. See United States v. Hovind, Case No. 3:06cr83-MCR, Doc. 212 (N.D. Fla. June 28, 2007), aff’d, 305 F. App’x 615, 623 (11th Cir. 2008), cert. denied, 558 U.S. 992 (2009); see also id. Doc. 325 (N.D. Fla. July 29, 2009). The substitute property included properties located in Pensacola, Florida, at 21 Cummings Road; 29 Cummings Road; 100 Cummings Road; and 400 Cummings Road.

2. In separate civil proceedings, the Court entered a permanent injunction on June 27, 2012, against Creation Science Evangelism among others, including “their representatives or agents,” permanently enjoining them “from seeking to file or otherwise create a lien on [the same forfeited] properties without first obtaining an order from this Court.” United States v. Creation Science Evangelism, Case No. 3:12cv136-MCR/EMT (doc. 7, at 7) (N.D. Fla. June 27, 2012).

3. Despite the forfeiture order and permanent injunction, Hovind filed lis pendens on properties that had been legally forfeited to the Government and were subject to the Court’s permanent injunction order.

4. The Government charges that by doing so, Hovind willfully violated the permanent injunction order.

Accordingly:

1. Kent E. Hovind is required to appear before the Court at 8:00 a.m., on September 8, 2014, to show cause why he should not be held in criminal contempt of Court, pursuant to 18 U.S.C. § 401(3) and Fed. R. Crim. P. 42(a). This will be a jury trial and will be held in Courtroom 5, United States District Court for the Northern District of Florida, Pensacola Division, located on One North Palafox Street, Pensacola, Florida 32502.

2. Kent E. Hovind has the right to the representation of counsel, the presumption of innocence, the privilege against self incrimination, to prepare a defense and to present witnesses, and to proof of guilt beyond a reasonable doubt before any criminal sanction may be imposed.

3. Kent E. Hovind must notify the Court within 15 calendar days of service of this Order if he desires court-appointed counsel. If court-appointed counsel is requested, Hovind will be required to provide the requisite financial information for the Court to make a determination of his right to such appointment.

4. The Government states it is prepared to appoint a criminal prosecutor to the case. Thus, the Court hereby appoints the United States Attorney’s Office for this District to prosecute the contempt. See Fed. R. Crim. P. 42(a)(2).

5. The United States Marshal is directed to promptly provide transport of Kent E. Hovind (BOP # 06452-017) from FPC Maxwell AFB, Montgomery, AL 36112, or wherever he may be housed, to this district to appear for trial on September 8, 2014. Defendant shall remain in custody within this district pending trial.

DONE AND ORDERED this 8th day of July, 2014.

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

1. In its discretion, the Court may try criminal contempt without a jury when the actual penalty imposed does not exceed six months’ imprisonment. See Taylor v. Hayes, 418 U.S. 488, 495 (1974).
2. To punish for criminal contempt of court, there must be proof that (1) a lawful and reasonably specific order (2) was violated and (3) the violation was willful. Romero, 480 F.3d at 1242; United States v. Bernardine, 237 F.3d 1279, 1282 (11th Cir. 2001); see also United States v. Baldwin, 770 F.2d 1550, 1557-58 (11th Cir. 1985) (“Criminal contempt is established when it is shown that the defendant is aware of a clear and definite court order and willfully disobeys the order.”). The government bears the burden to prove these elements beyond a reasonable doubt. Bernardine, 237 F.3d at 1282.
3. The jury forfeited $430,400 in currency.