Petition for Writ of Certiorari — Moncier v. United States

OFFICE OF THE CLERK

Supreme Court of the United States

ition for a Writ of Certioral!

nited States Court of Appeal

for the Sixth Circutrt

-ETITION FOR A WRIT OF CERTIORARI

QUESTIONS PRESEN’

il

PARTIES TO THE PROCEEDINGS

proceedings in the Court of

ult were Petitioner. Herbert S

the United State of Amer

TABLE OF CONTENTS

( IPINI( INS

CONSTITUTIONAL AND &

PROVISIONS INVOI

JURISDI

LASONS FOR GRAN

PETTETION

Petitioner is protected from prosecut}

OI criminal contempt for conduct |

reasonably believed Was required

his ethical and Constitutional duti

is an attornev-advocate for Vassal

(he Sixth Circuit Opinion |

Conflict With This Court's

Opinions And Opinions Of Other

Circuit Courts Of Appeals

Sacher "Protection

Justification

Law Enforcement Qualified Immunity

Judicial Immunity

Prosecutonal Immunity

> IT) titutional And Keith |

Duties To Chents Are Often

Obstructive”

Jones, Apprendi and

Require A Jury Trial

\ Jury Trial Is Required By TI

(;juideline Sentence And

Classification Of The Off

(Crimin

riminal Contempt Is No Long:

e After 1984

» 401 Criminal Contempt I

Felony Pursuant To’

sentencing Guideline

r was denied ht tructural

onstitutional mght to an impartial

dge by having his defenses at a

new trial Ilhmited by the Snxth

il

cult

CONCLUSION

PTABLE OF AUTHORITIES

re Herbert S. Moncier. Supreme

Application 09A583

re McConnell, 370 U

In re Murchison, 349 U.S

In re Snyder. 472 U.S. 63

Ladner v. United State

(1958)

Auer

nited otates

140 (U.S. 2006)

4

nited States v. Green. S.D.N_Y.1!

F Supp. 117, affirmed 241 F.2d 631

certiorari granted 77 S.Ct. 1057, 3

U.S. 972, 1 L.Ed.2d 1135, affirmed

18 5.Ct. 632, 356 U.S. 165, 2 L.Ed

fH (7

i/nited States |

Cir. 1996)

vy fil

OPINIONS BELOW

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fifth Amendment. United States Constitution

he Malhitia

Om py T)

Sixth Amendment. United States Constitution

criminal prosecutions, the accu

enjoy the right to a speedy and public tr

impartial jury of the State and district

the crime shall have been committed, which

district shal] have been previously ascertained by

law, and to be informed of the nature and cause of

the accusation; to be confronted with

witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defens«

Fed. R. Crim. P. 42(c)(3)

Rule 4 Criminal ¢

(3) Trial and Disposition \ per » be

yrosecuted for criminal contempt ts entitled to a

urv tmal in any case in which federal law ss

provides and must be released or detained as Rul

16 provides. If the criminal contempt involve

lisrespect toward or criticism of a judge, that

udge 1 disqualified from presiding at the

ntempt tnmal or hearing unless the defendant

onsent Upon i finding or verdict of curity. the

urt must impose the punishment

28 U.S.C. § 455

§ 455. Disqualification of justice, judge r ma trate

magistrate judge]

(a) Any justice, yudge, or magistrate [magistrate judge]

of the United States shall disqualify himself in any

proceeding in which his impartiality might reasonably

be questioned

(b) He shall also disqualify himself in the following

circumstances:

(1) Where he has a personal bias or prejudice concerning

a party, or personal knowledge of disputed evidentiary

facts concerning the proceeding;

(4) He knows that he, individually or as a fiduciary, or

his spouse or minor child residing in his household, has

a financial interest in the subject matter in controversy

or 1n a party to the proceeding, or any other interest

that could be substantially affected by the outcome of

the proceeding;

rj} ( 1 A t ? . y ‘

t ( I ! :

{ i

tanti { { ] f |

+} 4 * ;

i ? ¢>T '

ths y é>4

final iif interest nd lake 1 reasonab!

inform himself alt t personal financial

{ | pouss ind n LO! hildren residing in

justice judge, or magistrate |magistrate judge}

cept trom the parties to the proceeding a waive!

round for disquahfication enumerated in

tion (b). Where the ground for disqualification

only under subset LION (a), Walver may be accepted

dit 1s precede d by a full discl ure on the record

JURISDICTION

On July 8, 2009, the Court of Appeals issued its

decision reversing Petitioner’s conviction for criminal

contempt and remanding for a retrial. (Pet. Appx. 1)

A petition to rehear was denied on September 24,

2009. (Pet. Appx. 16)

On December 15, 2009 Justice Stevens granted an

extension of the time to file a petition for a writ of

certiorari to February 21, 2010. (Pet. Appx. 17)

Although there is no final judgment below, this

Court has jurisdiction pursuant to 28 U.S.C. § 1254(1),

which provides “cases in the courts of appeals may be

reviewed by the Supreme Court by ... writ of certiorari

sranted upon the petition of any party to any civil or

criminal case, before or after rendition of judgment or

decree.” (emphasis added). See Frisby v. Schultz, 487

U.S. 474, 479 (1988).

STATEMENT OF THE CASE

The FBI conducted an investigation it called

"Rose Thorne” since approximately 2000 in the

Greeneville Division of the Eastern District of

Tennessee. Petitioner, a criminal defense attorney, had

successfully represented a number of defendants at trial

in the Greeneville Division, some of who had been

indicted out of the "Rose Thorne” investigation.

Petitioner represented Michael Vassar _ since

October 4, 2005. Vassar was charged in_ two

indictments. One count was severed resulting in Vassar

facing three separate jury trials before District Judge J.

Ronnic Greer. Vassar was acquitted at his first jury

trial in February 2006.

raered

ti; tified

criminal

testified

A

the Court deter

‘n Petitioner repre ar and

Che Court disqualified

Petitioner from representing Gunter in

represented uncharged Grooms

eparat CASE

be< ause Cunter Was al 0 ft h iree d a a co ce

fendant with

Vassar but was represented by

'

eparats independent

counsel. Petitioner returned Gunte

yt bt} ‘ lowe

Petitioner asserted tl

I hould be (

iismuissed for

prov ided

the same percentage reduction pursuant to 18 U.S.C

(ANH) to avoid unwarranted sentence d! parity

Petitioner ubpoenaed witnesse who were

federal custody to the sentencing hearing on November

/, 2006, including Thornton, to support allegations of

prosecutorial misconduct Because Petitioner

required to obtain transport orders for the

Marshall, the prosecutors knew Petitioner ha

.

witnesses pre tify on November 17th

he day before the entencing hearing,

November 16th, 2006, the prosecutor faxed a letter

Petitioner (he letter included a statement that the

prosecutor tar witness, whom Petitioner had

ubpoenaed to testify at the November 17th hearing,

had admitted to committing perjury at Vassar’s trial

[Pet. Appx: ***] The letter also stated that another

witness, Shults, had given the prosecutors information

that Vassar was badly addicted to drugs which was one

am

f Vassar's defenss at tnial and at sentencin

In addition to the favorable evidence disclosed

ind for reasons that have to date never been explained,

the prosecutor in the November 16th letter asserted that

Vassar, two years earlier while in jail in 2005, had made

1 statement to alleged co-conspirator ‘Thornton that

implicated Petitroner's chent, Grooms

Vassar was in federal custody approximately 2

hours away from Petitioner. All telephone calls were

monitored. Prior to court on November 17th Petitioner

provided Vassar a copy of the prosecutor's letter

Petitioner also provided Vassar a letter that Petitioner

intended to request the Court to appoint independent

counsel to confer with Vassar about the disclosure and,

if the information were true, to consider seeking

sentencing benefits available to Vassar by cooperating

Petitioner informed

discuss the content

assar having independ:

nt in the November 16th letter

later denied by both Vassar and Thornton. To date

Government has never provided any documentat1

ipports the alleged ‘tatement that

1) that

uch information in 2005

16th letter that

ictions on November 17th h t late

: {) ui

een mentioned in proceeding against

etitioner, including Petitioner’

; conviction tor contempt

in the instant case

Pet if ioner's subseque nt

uspension

from federal practice for

rr seven (7) years by disciplining

District Judge Curtis L. Colher; the

sixth Circuit

Opinion denying Petitioner the right to pre

ent defenses

at his new tnial: or the Sixth

Circuit Opimion by the

suspension Nor ha

1c uspic1ous timing ol

utor’s letter the day before the

‘in Petitioner wa

ime panel affirming that

Court iddressed {

sentencing hearing

calling Thornton to testify

t the Dro ecutor

Pnor to the se ing hearings n November

needed to be

to appoint

ar about the

request was denied

Court to refer the matter

to a judge who would not be sentencing Va

with Va

denied

h, Petitioner notified the Court that

heard. Petitioner first moved the C

independent counsel to confer with Vas

November 16th disclosure. ‘That

Petitioner next requested the

ssar to conte!

sar about the new disclosure. ‘That motion was

fhe prosecutor announced he was

not interested

‘assar's cooperat

yn against raising

additional concerns as to why the prosecutor placed the

tatement about Grooms in the November 16th letter

Petitioner and Vassar had planned the sentencing

hearing prior to the November 16th letter. Petitioner

had Thornton present under subpoena to testify about

threats the prosecutor had made to him. Petitioner,

however, did not know what Thornton would say about

the alleged 2005 statement the prosecutor attributed to

lhornton in the November 16th letter

During a recess shortly before lunch, as Vassar

was being taken from the defense table to the lockup

Vassar told Petitioner he wanted Petitioner to go

forward with the sentencing hearing. After the recess,

Petitioner informed the Court that Petitioner would

confer with Vassar over the lunch break and be ready to

proceed to the sentencing hearing after lunch

The Court called Vassar and Petitioner to the

podium. At that time Vassar had no advice concerning

the risk facing him if he proceeded to the sentencing

hearing as planned prior to the November 16th letter.

Nor had Vassar received any advice as to the

significance or consequences of that information if true

[There had been no determination that there was a

conflict and the prosecutor had already stated Vassar’s

cooperation would not be accepted even if the statement

were true

The Court began to present a_ series of

hypothetical questions to Vassar. The Court changed

the hypotheticals as the questions proceeded. Vassar

was obviously getting confused. Hypotheticals being

used by the Court in its questions to Vassar were not

factually correct. Petitioner stated objections

Because Petitioner beheved Vassar should have

independent counsel, Petitioner had not inquired of

Vassar whether the statement attributed to him in the

November 16th letter about Petitioner's other clhent,

Grooms, was true. Depending upon the answer to that

question, Vassar faced significant risks from the Court’

questioning:

(1) Vassar had previously testified under oath

during the March and April 2006 hearing that he did

not know of any criminal activity of Grooms. [f in

response to the Court’s questions, Vassar now

acknowledged the information in the prosecutor's letter

about Grooms was true, Vassar would have

incriminated himself for perjury and obstruction of

justice; adjustments could be made to his Guideline

sentence calculation for obstruction; or, at a minimum,

Vassar would have provided evidence against himself

that could be weighed against Vassar in 18 U.S.C

§$3553(a) sentencing factor determinations

(2) Petitioner had represented to the Court in

March and April 2006 that before agreeing to represent

Grooms, Vassar told Petitioner that Vassar had no

knowledge about any illegal activity of Grooms. if

Vassar's purported communication to Thornton about

Grooms was true, Petitioner became a potential witness

against Vassar

(3) The new information, if true, conflicted

with the planned sentencing defense on November 17th

that Vassar did not have knowledge about others,

including Grooms, that prosecutors insisted Vassar

must provide to implicate if he was offered cooperation

(4) [f Petitioner proceeded with the sentencing

hearing as planned prior to the November 16th letter,

before investigating the new allegation and before

conferring with Vassar, 1f Petitioner called Thornton to

testify about threats made by the prosecutor, during

cross-examination the prosecutor would ask about the

alleged 2005 Vassar communication about Grooms.' If

Thornton admitted the communication, Vassar would be

subject to an increased sentence for obstruction of

justice by reason of Vassar's March and April 2006

sworn testimony

Vassar had received no advice pertaining to

questions the Court was propounding or actions the

Court could take based on Vassar's answers to questions

propounded. Vassar had received no advice that the

Court was attempting to obtain a waiver of Vassar's

Constitutional right to conflict-free counsel before

Petitioner had an opportunity to determine whether the

new information was true and whether Petitioner had

an actual conflict. Vassar had received no advice that

he could request the Court to allow him to confer with

and obtain the advice of Petitioner during questions

being propounded by the Court.

It was during these exigent circumstances and

imminent risks to Vassar, that Petitioner asked "May I

speak to my -- [Client].”. The colloquy that resulted in

Petitioner’s conviction for contempt was as follows

Mr. Moncier: Once again your honor -

The Court: Mr. Moncier --

Mr. Moncier: He makes --

The Court: Mr. Moncier, you be quiet.

Mr. Moncier: May I approach the bench?

The Court: You may stand there and do what

[ told you to do until Mr. Vassar

answers this question

Mr. Moncier: For the record, your Honor, |

object with him having

This District Judge generally does not hmit cross

examination to the subject of direct

The Court

Mr. Moncier

The Court

Petitioner w placed

representing Va r; and cited by

contempt. |Pet. App Dp. ; ¢

While tl contempt citati

pendins ourt appointed Va

a hearing with Vassar and hi

January 29. 2007. the Court reinstated

sar's attorney and Petitioner represe:

nearil mn February 12 ACLER

uilty of criminal under ;

101(1) and 401(3 for vis , direct

+

Monci r one more

Petitioner to one-year probatu

hours of community servic

and completion of

\ppx. 18-28}

Petitioner wa

hear Petitioner say

Judge Greer had already prohibited Petitioner fror

tT the p e* ve pro! l

Court

relate to

U

Petitioner moved to stay the sentence. The Court

denied a stay except to permit Petitioner to deposit the

$5,000.00 fine with the Clerk pending appeal.

The Sixth Circuit held that Judge Greer was

disqualified pursuant to Fed. R. Crim. P. 42(a)(3),

reversed Petitioner’s conviction and remanded for a new

trial. [Pet. App. Opinion p. 9, part B]

The Srxth Circuit limited Petitioner from

asserting any issue raised on appeal at his new trial

based on the record from the contempt trial for which

Judge Greer was disqualified. [Pet. Appx. p. 15]

REASONS FOR GRANTING THE PETITION

Petitioner is protected from prosecution for

criminal contempt for conduct he

reasonably believed was required by his

ethical and Constitutional duties as an

attorney-advocate for Vassar.

in Sacher v. United State

uurt held

But that there mar » no misunderstanding, we

make clear that this Court, if its aid be needed.

will unhesitatingly protect counsel in fearless,

vigorous and effective performance of every duty

pertaining to the office of the advocate on behalf

of any person whatsoever

At Petitioner's sentencing

judge Greer began by stating

The Court A simple statement, Judge,

made a mistake, I'm sorry, would have ended thi

matter a long time ago, but for some reason, Mr

Moncier, you're not able to say those words

You're not able to say, I made a mistake.

The “mistake” Judge Greer said Petitioner made

was Petitioner requesting permission from Judge Greer

“May I speak to my client?” after Petitioner had been

instructed not to approach the bench to argue objections

and not to state any further objections as Judge Greer

was requiring Petitioner's client to answer questions

about a subject the client had _ previously been

questioned by Judge Greer under oath.

Almost 300 pages have now been written about

Petitioners “mistake.” Petitioner was convicted of

contempt of Court and was stripped of 70% of his law

practice that was in federal courts for his “mistake.”

No court to date, however, including the Judge

Greer; the Magistrate-Judge conducting Petitioner’s

disciplinary hearing; the District Judge suspending

Petitioner from federal practice for seven years; or the

Sixth Circuit panel in two opinions, has addressed

Judge Greer had apparently forgotten Petitioner, before was

returned to the Courtroom from jail on November 17, 2006,

instructed an attorney appearing for him to apologize to the Court

ind that attorney told Judge Greer “Mr. Rogers: Before I go on,

Your Honor, though I want to make it clear to you that Moncier has

expressed to me in the brief time that I spent with him the fact that

he was only trying to make an objection; that he intended no

lisrespect to the court at that time and that he ts very sorry that

by, by attemptling to utter his staternent that he violated this

yurt's order when he felt he was compelled to do so.”

Petitioner has filed a Petition for Certiorari from his

liscipline for his conduct before Judge Greer on November 17th in

In re Herbert S. Moncier, Supreme Court Apphication O09A583

In that Petition, Petitioner presents this issue in the context of

whether Petitioner can be disciplined for conduct reasonably

believed to be required by his ethical and Constitutional duties to

Vassar

iz

Petitioners assertion that his request was not a

“mistake” but was reasonably necessary to provide

Vassar’s Sixth Amendment right to counsel and perform

Petitioner's ethical duties to Vassar.

Whether Petitioner made a “mistake” by making

the decision to request permission to speak to his client

under adverse circumstances in a serious criminal case

within a split second as his client was being questioned

by the judge goes to the core of what this Court

described in Sacher as “fearless, vigorous and effective

performance of every duty pertaining to the office of the

advocate on behalf of any person whatsoever.” Sacher,

343 U.S. at 14.

The Sixth Circuit Opinion Is In Conflict With This

Court’s Opinions And Opinions Of Other Circuit Court

Of Appeals

In Maness v. Meyers, 419 U.S. 449 (1975), an

attorney had advised his chent to disobey an order of a

judge to produce documents the attorney believed were

protected by the Chent's Fifth Amendment privilege

This Court first discussed the general rule that an

attorney does not have the mght to disobey a court order

This Court then established an exception to the general

rule that is applicable to Petitioner’s actions in this case

Thus the issue is whether in a civil proceeding a

lawyer may be held in contempt for counseling a

witness in good faith to refuse to produce court

ordered materials on the ground that the

materials may tend to incriminate the witness in

another proceeding. We hold that on this record

petitioner may not be penalized even though his

advice caused the witness to disobey the court's

order

The privilege against compelled self-incrimination

would be drained of its meaning if counsel, being

lawfully present, as here, could be penalized for

advising his client in good faith to assert it. The

assertion of a testimonial privilege, as of many

other nights, often depends upon legal advice from

someone who is trained and skilled in the subject

matter, and who may offer a more objective

opinion A layman may not be aware of the

precise scope, the nuances, and boundaries of his

hifth Amendment privilege. It is not a self

executing mechanism: it can be affirmatively

waived, or lost by not asserting it in a timely

fashion. If performance of a lawyer's duty to

idvise a chent that a privilege is available

exposes a lawyer to the threat of contempt for

eiving honest advice it is hardly debatable that

ye advocates may lose ther zeal for

forthnghtne ind independence. id

We ire atished that petitione! properly

performed his duti is an advocate here. and he

cannot suffer any penalty for performing 1c]

dutie n vood faith. id

In th CAaASt Line Jud f Wa que Lionin

Petitioners chent just prmor to hi entencing hearing

Petitioner requested to approach the bench to argue

objections so as to not be accused of “coaching” his client

Petitioner was instructed to "stand there and do what |

told you to do until Mr. Vassar answers this question.”

Petitioner then, from the podium, attempted to state an

objection and was instructed "Mr. Monciecr. one mors

word and you're gong to jail.” Being unable to state or

argue obrection Petitioner reque ted "May | peak ft

my chent

L4

The Sixth Circuit Opinion failed to address, cite

or apply this Court's opinion in Maness. Instead, the

Sixth Circuit Opinion strictly applied the general rule

that an order cannot be disobeyed without risk of

contempt. According to the Sixth Circuit:

Mr. Moncier's contention, specifically, is that

his "duty to confer and advise Vassar

necessarily included potential obstruction of

Judge Greer questioning Vassar in_ the

presence of the prosecutor and FBI{[.]" Moncter

br. at 5. The Tennessee Association of

Criminal Defense Lawyers make much the

same contention in its amicus brief supporting

Mr. Moncier. The idea appears to be that, had

Mr. Moncier not thrown himself across the

tracks on November 17, Mr. Vassar's

constitutional rights would have been violated.

And thus, we are told, it was appropnriate, and

event necessary for Mr. Moncier, rather than

Judge Greer, to take control of the courtroom.

To all of which there is a simple answer: There

is no right of revolution in a United States

District Court. The lawyer's duty is not to defy

the judge's orders, but to follow them. It is true

enough that judges, like other humans, will

make mistakes, and that those mistakes will

sometimes be to the detriment of a client’s

rights. But that is what Circuit Courts exist to

Lawyers are required to obey even

incorrect orders; the remedy is on appeal." Jn

re Dellinger, 502 F.2 813, 816 (7th Cir. 1974).

We entirely agree with Judge Greer that

"someone must be in control of, what happens

in a courtroom," and that the someone is "the

?

remedy.

trial judge, not the lawyer for a criminal

defendant nor the lawyer for the United

States.”

Petitioner urges this Court to hold that under the

exigent circumstances in this case, Petitioner’s simple

request for permission of a judge to speak to his chent

cannot fairly be characterized as throwing "himself

across the tracks." Nor does Petitioner’s request equate

to his taking "control of the courtroom” or participating

in a "revolution."

The Sixth Circuit Opinion conflicts with the

standard of the Seventh Circuit for holding an attorney-

advocate in contempt.

Attorneys have ae right to _ be persistent,

vociferous, contentious, and imposing, even to the

point of appearing obnoxious, when acting in their

chient’s behalf. An attorney may with impunity

take full advantage of the range of conduct that

our adversary system allows. Given this extreme

liberality necessary to a vital bar and thus the

effective discovery of truth through the adversary

process, an attorney possesses the requisite intent

only if he knows or reasonably should be aware in

view of all the circumstances, especially the heat

of controversy, that he is exceeding the outermost

limits of his proper role and hindering rather

than facilitating the search for truth

In re Dellinger, 461 F.2d 389, 400 (7th Cir.

1972)(emphasis added).

Requesting permission to perform a constitutional

or ethical duty to confer with and advise a defendant in

a serious criminal proceeding, in the heat of a

controversy, can hardly be considered "exceeding the

outermost limits of his proper role and hindering rather

Lo

than facilitating the search for truth." Dillinger, 461 at

400.

In Sacher v. United States, 343 U.S. 1, 14 (1952).

this Court held:

But that there may be no misunderstanding, we

make clear that this Court, if its aid be needed,

will unhesitatingly protect counsel in fearless,

vigorous and effective performance of every duty

pertaining to the office of the advocate on behalf

of any person whatsoever.

In In re McConnell, 370 U.S. 230, 239 (1962) this

Court held:

The arguments of a lawyer in presenting his

chent's case strenuously and persistently cannot

amount to a contempt of court so long as the

lawyer does not in some way create an obstruction

which blocks the judge in the performance of his

judicial duty.

Petitioner had a duty to confer and advise Vassar

as to the consequences of his answers to the Court's

questions; to assert a Fifth Amendment privilege if

necessary; and to object to an unresolved potential

conflict of interest to preserve that issue for appellate

review. see Mickens v. Taylor, 535 U.S. 162, 168 (2002)

and Holloway v. Arkansas, 435 U.S. 475 (1978).

Eastern District of Tennessee Local Rule 83.6

required Petitioner to comply with Tennessee Rules of

Professional Conduct in representing Vassar.

Petitioner's duties to Vassar regarding the Court's

questions are set out in EDTN 83.6, RPC Preface, 1.1,

1.2(d), 1.3, 1.4, 1.14, 1.16, 2.1, 3.1, 3.3, 3.4, and 3.5.

17

Copies and a truncated statement of these rules is

contained in the Appendix.

One of Petitioner’s duties was to confer and

advise Vassar. Tenn. Sup. Ct. Rule 8, RPC 1.4(b); 2.1.

This duty became particularly important in Vassar's

proceeding where the Court was questioning Vassar on

matters he had previously testified to under oath; in the

presence of prosecutors, FBI agents and presentence

officers; and immediately prior to deciding on a sentence

for Vassar.

The District Judge described his statement to

Petitioner "Mr. Moncier one more word and you're going

to jail" as "a direct, unequivocal command for silence.’

[R.44:M&O0,J.A.209] It is undisputed that Petitioner

was requesting to speak to Vassar when Petitioner

spoke the words "May I speak to my -- [Client].". There

is no suggestion that Petitioner uttered the words in a

loud tone or sarcastic manner.

Petitioner was charged with contempt for uttering

words, not for the content, manner or purpose of the

words uttered. Curiously, Judge Greer in his Order

convicting Petitioner recognized Vassar's right to confer

with, and have Petitioner's advice.

Such a request [by Vassar to speak to Petitioner]

would likely have been granted and would not

have violated the Court’s command to Moncier for

silence. [Pet. App. Order pp. ***]

Petitioner's crime was requesting permission to

provide Vassar the constitutional and ethical rights

Judge Greer would have granted Vassar had Vassar

made the request himself. Vassar's right to request to

speak to Petitioner, and Petitioner’s duty to confer and

18

advise Vassar, are indistinguishable. Neither is

superior to the other.

The Court apparently believed Petitioner’s duty to

confer and advise Vassar was only triggered upon

Vassar's request. compare Tenn. Sup. Ct. Rules, RPC

2.1(duty to advise the chent if the client's course of

action is related to the representation when doing so

appears to be in the client's interest); Fed.R.Crim.P.

51{b) duty to object; Fed.R.App.P. 36(a) failure to object;

Mickens v. Taylor, 535 U.S. 162, 168 (2002); Holloway v.

Arkansas, 435 U.S. 475 (1978); United States v. Vonner,

516 F.3d 382 (6th.Cir.2008).

Federal dockets are filled with defendants

asserting they were denied the effective assistance of

their counsel. Ironically, Petitioner is charged with

criminal contempt for attempting to provide his client

more assistance of counsel than the District Judge

belheved Vassar was due.

The Sixth Circuit Opinion also failed to consider

the “actual obstruction” requirement of this court

established In re McConnell. There was no jury present.

The Court could have responded to Petitioner’s request

with a simple "yes” or "no" with far less disruption of the

proceedings than occurred as the result of the contempt.

Vassar was traveling on a slippery slope when

being required to answer the Judge’s questions where

his attorney could not object, argue or advise Vassar.

Maness requires that before Petitioner can be charged

with contempt, it must be determined that Petitioner

was riot performing a duty he reasonably beheved was

owed to Vassar.

The Court began Petitioner’s sentencing hearing

by stating "A simple statement, Judge, I made a

ig

mistake, I'm sorry, would have ended this matter."> [Pet

Appx. pp. 63-66]. Regardless of the fact that Petitioner

did apologize to Judge Greer, an attorney's failure to

apologize to a court is insufficient to constitute or form

the basis for contemp. In re Snyder, 472 U.S. 634

(1985)

Under the restrictions the District Judge

imposed, Petitioner being present served only to provide

an illusory appearance of Vassar having counsel while

being questioned. If Petitioner could not object and

could not confer or advise Vassar until Vassar answered

the Court's questions, there was no reason for Petitioner

to be present. The Court's directives was the equivalent

of ordering Petitioner removed from the Courtroom or

the District Judge continuing his questions of Vassar

after Petitioner was placed in jail.

This Court in United States v. Gonzalez-Lopez,

548 U.S. 140 (U.S. 2006), held that the denial of a

defendant's counsel of choice constituted a structural

defect in the proceeding that was complete upon its

occurrence requiring reversal without any requirement

of a showing of prejudice.

The District Judge’s directives to Petitioner not to

approach the bench; not to object; and not confer or

advise to Vassar until Vassar answered the Court's

questions was the functional equivalent of th » denial of

counsel and pursuant to Gonzalez-Lopez was a

completed constitutional structural defect in the

proceeding.

The first thing Petitioner requested his attorney say to

Judge Greer upon being returned to the Courtroom on November

17th was that Petitioner was deeply sorry that the Court construed

Petitioner's attempts to state objections for Vassar were viewed by

the Court as contempt. [App. Trans. pp. *****]

VA)

Sacher "Protecttons”

This Court in Sacher spoke in terms of

“protecting” advocates representing clients in criminal

proceedings. The Court, however, did not specify what

judicial mechanism would protect the advocate-attorney.

This Court has provided afforded judges "judicial

immunity"; prosecutors "prosecutorial immunity"; and

law enforcement officers "qualified immunity."

Petitioner requests this Court grant the Petition to

provide defense attorneys "advocate immunity” to

implement the protections this Court required in

Maness, Sacher and In re McConnell. “Advocate

immunity” for defense attorneys is consistent with other

federal common-law “immunities” afforded other

participants in judicial proceedings.

Justification

In Brogan v. United States, 522 U.S. 398, 405,

(1998) this Court quoted with approval from Corpus

Juris Secunum, Crimlaw §56 that:

Criminal prohibitions do not generally apply to

reasonable enforcement actions by officers of the

law. See, e.g., 2 P. Robinson, Criminal Law

Defenses §142(a), p. 121 (1984) (“Every American

jurisdiction recognizes some form of law

enforcement authority justification’”)®.

Petitioner had duties imposed on him by the

Constitution and ethical rules of the Court. If Petitioner

reasonably believed he was performing those duties as

6 This compliance with the law “justification” defense is

different from the "justification" defense defined in Sixth Circuit

Pattern Jury § 6.07.

21

an advocate for his client at the time Petitioner asked

"May I speak to my client" then Brogan justified

Petitioner making that request. Criminal prohibitions

of 18 U.S.C. § 401, just as with a law enforcement

officer, do not apply where Petitioner's acts were done in

compliance with the duties imposed on Petitioner by the

Constitution by EDTN LR 83.6/RPC.7

Law Enforcement Qualified Immunity

This Court created federal common law "qualified

immunity" for law enforcement officers where the

actions "do not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” Mitchell v. Forsyth, 472 U.S. 511 (US.

1985).

Petitioner asserts that applying the Mitchell

qualified immunity test, a reasonable criminal defense

attorney would not understand that the act of asking to

speak to his chent was contemptuous. Further, under

the Mitchell standard, a reasonable criminal defense

attorney would not have known that a request for

clarification of the Court's directive would constitute a

violation of the directive.

Even the Government recognized that Petitioner

could lawfully speak after the District Court's directive

to "stand there and not say another word until your

chent answers my question.” According to the

Government, Petitioner should have said "your Honor,

Mr. Vassar is indicating that he wishes to consult with

me before he responds.” [Gov. 6th Cir. Response Brief,

p. 39]. A reasonable criminal defense attorney would

discern no meaningful difference between that

i Defenses of "coercion" and "necessity" to protect Vassar may

also apply.

supposedly lawful request and "May I speak to my

chent?”

Similarly, Petitioner asserts that Congress did

not intend the contempt statute, 18 U.S.C. § 401, to

punish effective advocacy. If that intent is unclear, the

rule of lenity should be apphed.

The rule of lenity applies only if, "after seizing

everything from which aid can be derived," . . .

we can make "no more than a guess as to what

Congress intended.” United States v. Wells, 519

U.S. 482, 499, 137 L. Ed. 2d 107, 117 S. Ct. 921

(1997) (quoting Reno v. Koray, 515 U.S. 50, 64,

132 L. Ed. 2d 46, 115 S. Ct. 2021 (1995), Smith,

supra, at 239, and Ladner v. United States, 358

U.S. 169, 178, 3 L. Ed. 2d 199, 79 S. Ct. 209

(1958)). To invoke the rule, we must conclude

that there is a "gnevous ambiguity or

uncertainty’ in the statute." Staples v. United

States, 511 U.S. 600, 619, n. 17, 128 L. Ed. 2d

608, 114 S. Ct. 1793 (1994) (quoting Chapman v.

United States, 500 U.S. 453, 463, 114 L. Ed. 2d

524, 111 S. Ct. 1919 (1991).

Muscarello v. United States, 524 U.S. 125, 138-139 (U.S.

1998).

18 U.S.C. § 401 is ambiguous as to whether

Petitioner's attempts to perform constitutional and

ethical duties to his clhent were prohibited. Whether

springing from an application of the rule of lenity,

qualified immunity or “advocate” immunity, this

ambiguity must be resolved in Petitioner’s favor.

Judicial Immunity

[In Pierson v. Ray, 386 U.S. 547, 554, (1967) this

Court held judicial immunity serves the public interest

in judges who are "at hberty to exercise their functions

with independence and without fear of consequences."

The same public interest applies to criminal defense

attorneys who are acting to protect the constitutional

rights of their clients. see Maness v. Meyers, supra

Prosecutorial Immunity

In I[mbler v. Pachtman, 424 U.S. 409. 422-423

(U.S. 1976), this Court held "The common-law immunity

of a prosecutor is based upon the same considerations

that underlie the common-law immunities of judges and

grand jurors acting within the scope of their duties.

These include concern that harassment by unfounded

litigation would cause a deflection of the prosecutor's

energies from his public duties, and the possibility that

he would shade his decisions instead of exercising the

independence of judgment required by his public trust.”

Once again, the same is true of an attorney charged with

the constitutional duty to defend a citizen accused of

crime.

Constitutional And Ethical Duties To Clients Are Often

“Obstructive”

Petitioner had a clearly estabhshed ethical and

constitutional duty to confer and advise Vassar as

Vassar was being compelled to answer questions that

had serious adverse implications to Vassar.

As discussed supra, the Sixth Circuit Opinion

belittles the concept that an attorney's ethical or

constitutional duty to a client may justify "obstructing"

the Court’s questioning of Vassar. The Opinion places

24

the District Judge’s’ directive superior to the

constitutional rights of Vassar

The notion that an attorney can be convicted of

contempt for advising a chent to disobey an order

requiring him to incriminate himself was specifically

rejected by this Court in Maness. The "obstruction"

argument regarding attorneys was also made, and

rejected in Miranda v. Arizona, 384 U.S. 436, 441 (1966)

regarding attorneys advising chents during questioning

by police.

If the individual desires to exercise his privilege,

[representation by counsel] he has the right to do

so. This is not for the authorities to decide. An

attorney may advise his client not to talk to police

until he has had an opportunity to investigate the

case, or he may wish to be present with his chent

during any police questioning. In doing so an

attorney is merely’ exercising the _ good

professional judgment he has been taught. This is

not cause for considering the attorney a menace to

law enforcement. He is merely carrying out what

he is sworn to do under his oath-to protect to the

extent of his ability the mghts of his client. In

fulfilling this responsibility the attorney plays a

vital role in the administration of criminal justice

under our Constitution.

Concluston

Petitioner suggests that most lawyers and

Americans, when informed Petitioner was convicted of

criminal contempt for asking a court for permission to

“speak to my client" would say "Isn't that what an

attorney is supposed to do?”

The Sixth Circuit Opinion is in conflict with this

Court's opinions in Maness, Sacher and In re McConnell

and the Seventh Circuit Opinion in Jn re Dellinger.

Petitioner requests this Court grant his Petition

to consider whether he is immune from being charged

with criminal contempt for conduct that was reasonably

intended to protect a constitutional mght, or to perform

an ethical duty, as an advocate for his client in a

criminal proceeding.

[I. Petitioner was denied his Sixth Amendment

right to a jury trial.

The Sixth Circuit Opinion did not address

Petitioner's claim that he was denied his Sixth

Amendment right to a jury trial. The Opinion, however,

at page 10, in one sentence, simply held Petitioner could

not raise claims made on appeal at a new trial and in an

all-inclusive ruling held "We have considered all of those

arguments [Petitioner's claims on appeal], and with the

sole exception of the one made under Rule 42(a)(3)

[disqualification of the trial judge], we reject all of them

on the merits.”

With this ruling, the rule of law in Petitioner's

case, although not addressed on appeal, is_ that

Petitioner is not entitled to a jury trial and Petitioner

will be denied a jury trial at his new trial. Further,

Petitioner may be denied appellate review of any new

conviction by a judge at a new trial because the issue

was previously "decided” in this appeal.

Jones, Apprendi and Blakely Require A Jury Trial

Petitioner asserts the Sixth Circuit Opinion

denying a jury trial would be in conflict with this Court's

opinions in Jones v. United States; Apprendi v. United

26

States; and Blakely v. Washington.® These decisions of

this Court have re-affirmed the Sixth Amendment

constitutional right to a jury trial to require any fact

necessary for a judge to increase punishment, other than

convictions or beyond those facts admitted by the

defendant or established by the jury's verdict, be decided

by a jury.

The District Judge could not sentence Petitioner

for contempt without first making factual findings

necessary for the District Judge to convict Petitioner. It

is constitutionally illogical to provide Petitioner a right

to a jury trial for factual determinations necessary to

increase punishment, but deny Petitioner a jury trial for

a crime, the conviction of which is required to impose

any sentence.

Petitioner requests this Court grant the Petition

to hold that the Sixth Cuircuit’s Opinion denying

Petitioner a jury trial is in conflict with this Court's

opinions in Jones, Apprendi and Blakely.

A Jury Trial Is Required By The Guideline Sentence And

Classification Of The Offense Of Criminal Contempt

Petitioner further requests this Court grant the

Petition to determine whether prior jurisprudence of

this Court pertaining to contempt and petty offense law

is no longer applicable to criminal contempt after the

Sentencing Guidelines and new classification of offenses.

In Bloom v. State of Illinois, 391 U.S. 194, 88

S.Ct. 1477, 1480 (1967), this Supreme Court held:

8 Jones v. United States, 526 U.S. 227 (1999):

Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely V.

Washington, 542 U.S. 296 (2004)

[Slerious contempts are so nearly like other

serious crimes that they are subject to the jury

trial provisions of the Constitution. ... [id. 198]

Our experience teaches that convictions for

criminal contempt, not infrequently resulting in

extremely serious penalties, are indistinguishable

from those obtained under ordinary criminal

laws. If the mght to jury trial is a fundamental

matter in other criminal cases, which we think it

is, it must also be extended to criminal contempt

cases. [Id. 207-08]

deciding to treat criminal contempt like other

crimes insofar as the right to jury trial is

concerned, we similarly place it under the rule

that petty crimes need not be tried to a jury. [Id.

at 210]...

If the penalty authorized by the legislature is

more than six months, the crime is a serious

crime and the defendant is entitled to a jury trial

(even though the judge may impose a sentence of

less than six months. [Id. at 211]

When Bloom was decided a petty offense was

defined by 18 U.S.C. § 19 as an offense for which a

sentence of less than six months can be imposed. This

Court in Taylor v. Hayes, 418 U.S. 488 (1974) held a

'

citizen charged with a "petty offense" was not entitled to

a jury trial.

Taylor is no longer applicable because the

punishment for criminal contempt was increased and re-

classified by the adoption of Sentencing Guidelines.

28

Criminal Contempt Is No Longer A Petty Offense After

1984

18 U.S.C. § 1(3) defined a "petty offense" as “any

misdemeanor that the maximum imprisonment does not

exceed 6 months or a fine in excess of $5,000.00.” 18

U.S.C. § 1(3) was repealed by the Omnibus Crime Act,

Public Law 98-472, Title II, § 218(a)(1) October 12, 1984.

The definition of a "petty offense" was replaced by 18

U.S.C. § 19 and 18 U.S.C. § 3559 Classification of

Offenses.

Post-1984, 18 U.S.C. § 19 defines a “petty offense”

as a Class B or Class C misdemeanor, or infraction, that

is punishable by a fine not greater than the amount set

forth in 18 U.S.C. § 3571(b)(6) or (7), 1-e. $5,000.00.

Under the Post-1984 definition of "petty offense”, any

offense, including criminal contempt, that includes

imprisonment for any period is no longer a "petty

offense”.

18 U.S.C. § 401 criminal contempt has no

maximum term of imprisonment or fine. Brown v. U. S.,

359 U.S. 41 (1959), rehearing denied 359 U.S. 976.

Sentences for criminal contempt of over one year and up

to ten years have been upheld as “reasonable.” See

United States v. DiPaolo, 804 F.2d 225 (C.A.2, 1986)(10

years); U.S. v. Green, S.D.N.Y.1956, 140 F.Supp. 117,

affirmed 241 F.2d 631, certiorari granted 77 S.Ct. 1057,

353 U.S. 972, 1 L.Ed.2d 1135, affirmed 78 S.Ct. 632, 356

U.S. 165, 2 L.Ed.2d 672(3 years)(three years); U.S. v.

Papadakis, 802 F.2d 618 (C.A.2, 1986)(5 years); U_S. v.

Green, 630 F.2d 566, (C.A.8 1980) certiorari denied 449

U.S. 904(2 years); Nilva v. U.S., 227 F.2d 74 (C.A.8,

1955)(1 year and a day)

FAS

In Lewis v. United States, 518 U.S. 322, 326

(1996) this Court held “[T]o determine whether an

offense is petty, we consider the maximum penalty

attached to the offense.”2 18 U.S.C. § 401 is not a “petty

offense”, as defined by 18 U.S.C. § 19, because 18 U.S.C.

§ 401 does not hmit the fine to a maximum of $5,000.00

as required by 18 U.S.C. § 19 and § 3571(b)(6) and (7);

18 U.S.C. § 401 does not define the offense as a Class B

or C misdemeanor; and 18 U.S.C. § 401 does not hmit

the maximum punishment under § 3559(a)(7) to six

months or less.

Petitioner acknowledges Lewis discussed the pre-

1984 case of Codispoti v. Pennsylvania, 418 U.S. 506

(1974) that permitted the actual sentence imposed to

control whether the defendant was entitled to a jury

trial when the legislature has not specified a maximum

penalty. The Lewis Court, however, did not consider

Congress’ judgment reflected in the 1984 amendments

for the definition of a petty offense under 18 U.S.C. § 19;

the definition of a felony under § 3559; or USSG § 2J1.2

subjecting obstruction of justice to a 24-30 month

sentence.

4 The maximum sentence for the offense in Lewis was six

months making it a Class B misdemeanor. The Court held that

even though there were more than one count, the potential of a

consecutive sentence did not change the nature of the crime.

§ 401 Criminal Contempt Is A Felony Pursuant To The

Sentencing Guidelines’?

The 1984 Ominous Crime Act, supra, also

established the Sentencing Guidelines. The Sentencing

Commission determined, in Application Note 1 to §

231.1, that:

Because misconduct constituting contempt varies

significantly ... the Commission has not provided

a specific guideline for this offense. In certain

cases, the offense conduct will be sufficiently

analogous to § 2.31.2 (Obstruction of Justice) for

that guideline to apply.

An essential element of 18 U.S.C. § 401 was that

Petitioner obstructed the administration of justice.

USSG § 2J.1.2(b)(2) “Obstruction of Justice” has a

specific offense characteristic that “If the offense

resulted in substantial interference with the

administration of justice, increase by 3 levels.”

In United States v. Voss, 82 F.3d 1521 (C.A.10,

1996) the Tenth Circuit held that USSG § 2J1.2(b)(2)

“obstruction of justice” was to be apphed to criminal

os Petitioner acknowledges the risk of this argument, Le.,

Petitioner is tmed for a felony at a new trial. Petitioner had

practiced law for 37 years without a complaint or discipline.

Petitioner has been honored nationally for his trial skills; his

mentoring and education of other attorneys; his legal achievements;

and his contributions as a criminal defense attorney. Petitioner's

law practice since the events of November 17, 2006 has been

destroyed. At 63 years of age it is unlikely Petitioner will ever

regain what has been lost. Chief Judge Curtis L. Collier has already

appointed a new judge from his division of the Eastern District to

retry Petitioner. Petitioner would rather face trial for a felony

before a jury than be tried again by a Judge who sits in the same

district with Judge Greer and on the same bench with Judge

Collier.

contempt of court with its Guideline level of 17 and

resulting guideline sentence of 24-30 months. accord

United States v. Price, 30 Fed. Appx. 333 *10 (6th Cir.

2002)

Thus, pursuant to 18 U.S.C. § 3559 (even pre

Booker), Congress provided that violations of 18 U.S.C.

§ 401 were felonies punishable by more that one year

with a guideline sentence of 24-30 months. Clearly

Petitioner had a Sixth Amendment right to a jury trial

for a felony with a guideline sentence of 24-30 months.

Post-Booker the question becomes’ whether

sentencing is “reasonable” where Judge Greer ruled pre-

trial he will vary 75% below the minimum guideline

sentence to a maximum of six months for the purpose of

denying Petitioner a jury trial

No 18 U.S.C. § 3553(a) sentencing factor permits

a sentencing Judge to vary below the 24-30 “heartland”

guideline sentence before tral for the purpose of

denying a defendant a jury trial. There is no procedure

in United States v. Booker, 543 U.S. 220 (2005) or its

progeny for a district judge to determine prior to trial

that a "reasonable sentence" for the purpose of denying

the defendant a jury trial 1s six months or less instead of

the guideline sentence of 24-30 months.

Conclusion

The Petition should be granted for this Court to

consider the Sixth Amendment right to a jury trial in

the context of this Court's opinions in Jones, Apprendi

and Blakely.

The Petition should also be granted for this Court

to review its prior cases in the context of the repeal of

prior petty offense definition and the sentence and the

32

classification of criminal contempt under the Sentencing

Guidelines.

Ill. Petitioner was denied his_ structural

constitutional right to an impartial judge by

having his defenses at a new trial limited by

the Sixth Circuit.

Petitioner moved to disqualify Judge Greer from

presiding over his criminal contempt trial pursuant to

Fed. R. Crim. P. 42(a)(3) and 28 U.S.C. § 455(a),

455(b)(1) and 455(b)(5){iv).

Petitioner filed numerous statements made by

Judge Greer before and after the events of November 17,

2006 but before Petitioner's criminal contempt trial that

established Judge Greer harbored a §455(b)(1) bias

against Petitioner or, at a minimum, statements that

"might reasonably question his impartiality" under

§455(a).1}

The Sixth Circuit Opinion held that Judge Greer

was disqualified pursuant to Fed. R. Crm. P. 42(a)(3)

because Petitioner's conduct "involved disrespect

toward the judge."!2, The Sixth Circuit, then, based on

the record that had been created before Judge Greer,

while he was disqualified, ordered that Petitioner's new

trial

should be unencumbered by any of the arguments

in Mr. Moncier's brief to this Court. We have

considered all of those arguments, and with the

be Judge Greer said at Petitioner's sentencing that he believed

Petitioner’s contempt may be his “legacy as a federal judge”.

be The Sixth Circuit Opinion either failed to address or

pretermitted numerous other statements and materials filed by

Petitioner pursuant to 28 U.S.C. § 455 to disqualify Judge Greer.

sole exception of the one made under Rule

42(a)(3), we reject all of them on the merits. [Pet.

Appx. Opinion, p. 10]

Judge Greer admitted he believed Petitioner's

conduct involved disrespect to him. His own statements

established pursuant to Fed. R. Crim. P. 42(a)(3) that he

was disqualified.

A fair reading of the Sixth Circuit Opinion

appears to express regret by the Court being required to

reverse because of the clear provisions Fed. R. Crim. P.

42(a)(3). Respectfully, the Opinion further appears to

express excuses for Judge Greer failing to disqualify

himself under the rule. In fact, the Sixth Circuit

Opinion praised Judge Greer for attempting to "rise

above taking personal offense by Mr. Moncier's conduct

toward him” and found it was an "ironic consequence

that [Petitioner] gets a new trial." [App. Opinion, p. 10]

Respectfully, the Sixth Circuit Opinion treats

Fed. R. Crim. P. 42(a)(3) as a technicality. What the

Opinion fails to recognize is that Fed. R. Crim. P.

42(a)(3) conduct "involving disrespect to the judge" also

requires disqualification pursuant to 28 U.S.C. § 455(a)

and the Code of Conduct for United States Judges

because the attorney's disrespect might reasonably

question the Judge's impartiality. Further, a judge

trying a person for actions involving disrespect toward

the judge, is disqualifying pursuant to 28 U.S.C. §

455(b)(1) because the allegation of an attorney's

disrespect might reasonably call into question whether

that judge has a personal bias or prejudice concerning

the defendant.

Trial by a judge who is not impartial is not a

"technicality" but 1s a constitutional "structural defect"

in the criminal proceeding:

We have recognized that “some constitutional

rights [are] so basic to a fair trial that their

infraction can never be treated as harmless

error.” Chapman v. California, 386 U.S., at 23,

87 S.Ct., at 827. The right to an impartial

adjudicator, be it judge or jury, is such a right.

Id., at 23, n. 8, 87 S.Ct., at 828, n. 8, citing, among

other cases, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct.

437, 71 L.Ed. 749 (1927) (impartial judge).

Gray v. Mississippi, 481 U.S. 648, 668 (1987)

Due process requires recusal of a judge who has

become personally embroiled in a controversy and

cannot therefore adjudicate it fairly. Mayberry uv.

Pennsylvania, 400 U_S. 455, 465-466, (1971).

Likewise, a trial judge should not preside over a

criminal contempt proceeding against an attorney where

the trial judge has permitted himself to become

“personally embroiled” with the defense attorney

throughout trial. Offutt v. United States, 348 U.S. 11,

17, (1954). As stated in Offutt Judges should not sit:

{[I]n judgment upon misconduct of counsel where

the contempt charged is entangled with the

jyudge’s personal feelings against the lawyer..

-_The vital point is that in sitting in judgment on

such a misbehaving lawyer the judge should not

himself give vent to personal spleen or respond to

a personal grievance.

Offutt v. United States, 348 U.S. 11, 17, (1954)

The inquiry is “not only whether there was actual

bias on [the judge’s] part, but also whether there was

‘such a likelihood of bias or an appearance of bias that

the judge was unable to hold the balance between

vindicating the interests of the court and the interests of

the accused.” Ungar v. Sarafite, 376 U.S. 575 (1964).

“Such a stringent rule may sometimes bar trial judges

who have no actual bias and who would do their very

best to weigh the scales of justice equally between

contending parties.” Jn re Murchison, 349 U.S. 133, 136,

(1955). The fact that an appearance of bias is sufficient

to warrant disqualification underscores the elemental

truth that in a judicial proceeding appearances do

matter. Offutt v. United States, 348 U.S. 11, 14, (1954).

The disqualification calculus does not concern

what is in the mind of the judge, nor does it

prescribe some subjective test by which one might

measure the probability of bias or prejudice.

Instead, it says that a judge should be

disqualified from a _ proceeding where _ the

circumstances raise reasonable questions about

his impartiality, regardless of his state of mind or

ability to conduct a fair and impartial hearing.

United States v. Griffin, 84 F.3d 820 (7th Cir.1996).

The issue presented is not whether Judge Greer

was disqualified. The Sixth Circuit held Judge Greer

ras disqualified. The issue presented is what effect the

Sixth Circuit, or a subsequent judge, can give to the

record created before Judge Greer when he was

disqualified.

In this case, based on a record created before a

disqualified judge, the Sixth Circuit Opinion, without

specifically addressing Appellant's claims on appeal,

held that Petitioner's retrial "should be unencumbered

by any of the arguments in Mr. Moncier's brief to this

court. We have considered all of those arguments, and

with the sole exception of the one made under Rule

36

42(a)(3), we reject all of them on the merits." [App.

Opinion, p. 10]

To Petitioner's knowledge, This Court has not

previously recognized jurisdiction of an Appellate Court

to make rulings based on a record created before a

disqualified judge.

Petitioner requests this Court to grant the

Petition to hold that because there was a constitutional

structural defect in the proceedings, the proceedings

were void and of no effect and that the legal effect of a

proceeding being void is that the proceeding did not

occur.

Petitioner further requests this Court grant the

Petition to hold that an appellate court, or any

subsequent trial court, does not have subject matter

jurisdiction to make any rulings based on a _ void

proceeding including those made by the Sixth Circuit

denying Petitioner's defenses at a new trial.

CONCLUSION

For the reasons stated the Petition should be

cranted

Respectfully submitted,

HERBERT S. MONCIER

Counsel Of Record

550 W. Main Street, Suite 775

Knoxville, Tennessee 37902

(865) 546-7746

Supreme Court Bar # 146330

February 22, 2010 Counsel for Petitioner