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CIVIL LITIGANT GETS THE CRIMINAL TREATMENT

 

Zulmai Nazarzai was never convicted of a crime; he was never even charged with a crime. Yet he has been sitting in solitary confinement in the Orange County jail for six years now. That is a long time to spend in solitary confinement.

In 2010, the California attorney general filed a civil lawsuit against Mr. Nazarzai accusing him of running a boiler-room telemarketing scam that bilked elderly people to the tune of $2 million. This was a civil lawsuit; the attorney general did not charge Mr. Nazarzai with any criminal acts. The attorney general won the civil suit and Mr. Nazarzai was ordered to pay a hefty sum of $4 million in penalties and restitution. It was known to the attorney general that Mr. Nazarzai had withdrawn $360,540 from his business bank account. The judge who made the restitution order, ordered Mr. Nazarzai to turn over those funds.

Mr. Nazarzai told the judge he did not have the money. He actually told the judge some absurd story about how the money was lost. The judge called his story incredulous and held Mr. Nazarzai in contempt of court for willful disobedience of the court’s order. (Code of Civil Procedure §1209 (a)(5))

Now sending someone to jail for contempt is a pretty drastic step; leaving a contemner jailed for six years is almost unheard of although it happens. The longest time any civil contemner has spent in jail for contempt of court was 14 years. That case was in Delaware.

A proceeding for civil contempt of court is regarded as a quasi-criminal proceeding and the criminal rules apply to a contempt hearing. Just like a criminal hearing, the person held for contempt is entitled to due process and has the same rights as a criminal defendant with the exception of a right to a jury trial. There are two kinds of contempt: punitive and coercive. In Mr. Nazarzai’s case, the proceeding was a coercive, that is, the judge used imprisonment to compel compliance with the order; he is not—in theory—being punished at all.

And that is why the appellate court has now asked the trial court to hold a hearing to determine whether Mr. Nazarzai can actually comply with the order and whether his continued confinement will further his compliance. The contempt order was coercive, but the appellate court has also asked the trial court to consider in the hearing whether the confinement has become punitive. Now that the appellate court is involved, Mr. Nazarzai may soon be freed.

It happens that civil litigants (and sometimes their attorneys or even witnesses) are found in contempt of court and find themselves cooling their heels in jail although rarely for years, or even days. Since contempt of court hearings are basically the same as criminal hearings, a criminal defense attorney is often better equipped to handle the matter.

The irony of Mr. Nazarzai ‘s saga: If he had been criminally charged and convicted, the attorney general estimates that he would already be out of jail.

William Weinberg is an experienced criminal defense attorney who can advise you regarding any criminal defense matter, including the serious charge of murder. You can contact Orange County Criminal Defense Attorney William Weinberg at 949-474-8008 or at www.bill@williamweinberg.com.