Apendix — Moncier v. United States

Pet. Appx. I

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 07-6053

HERBERT S. MONCIER

yefendant-Appellant

Appeal from the United States District Court

for the Eastern District of Tennessee at Greeneville. No.

07-00040 - J. Ronnie Greer, District Judge.

Argued: March 12, 2009

Decided and Filed: July 8, 2009

Before: DAUGHTREY, ROGERS, and KETHLEDGE,

Circuit Judges

COUNSEL

ARGUED: Ralph E. Harwell, Law Offices of Ralph E.

Harwell, Knoxville, Tennessee for Appellant. Robert M.

Reeves, ASSISTANT UNITED STATES ATTORNEY,

Greeneville, Tennessee for Appellee. ON BRIEF:

Ralph E. Harwell, LAW OFFICES OF RALPH E.

HARWELL, Knoxville, Tennessee, for Appellant. Robert

M. Reeves, ASSISTANT UNITED STATES

ATTORNEY, Greeneville, Tennessee, for Appellee.

Stephen Ross Johnson, Wade V. Davies, RITCHIE,

DILLARD & DAVIES, P.C. Knoxville, Tennessee, Caryll

Pet. Appx. 2

S. Alpert, TENNESSEE ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS, Nashville, Tennessee, for

Amicus Curiae.

OPINION

KETHLEDGE, Circuit Judge. Attorney Herbert

Moncier appeals his conviction for criminal contempt

relating to his conduct during a sentencing hearing

before Judge Ronnie Greer. Although we reject all but

one of Mr. Moncier's arguments, that one requires us to

vacate his conviction and remand for a new trial.

I.

A.

This case arises from Mr. Moncier's

representation of three potential defendants - Michael

Gunter, Michael Vassar, and Harold Grooms - in

connection with a federal drug _ investigation in

Tennessee. Gunter and Vassar were tried together in

the Eastern District of Tennessee, but Grooms remained

unindicted during the time relevant to this appeal. On

March 17, 2006, Judge Ronnie Greer conducted a

hearing on the question whether Mr. Moncier's

representation of Gunter and Vassar presented a

conflict of interest for him. That hearing rand more

than five hours. During the hearing, Moncier accused

the government of "scurrilous” behavior, accused Judge

Greer and the assigned Magistrate Judge of bias, and

talked over Judge Greer to the point where, for "the first

time” since he had "been on the bench[,]" Judge Greer

resorted to the gavel to restore order. Judge Greer

eventually disqualified Mr. Mboncier from his

representation of Gunter, finding an unwaivable conflict

of interest. Gunter and Vassar were thereafter jointly

tried and convicted, with Mr. Moncier representing

Vassar.

Pet. Appx. 3

Mr. Moncier then proceeded to file 43 post-verdict

.

motions on Vassar's behalf. They included: "Motion for

Presentence [sic] Hearing Conference to Determine

Disputed and Contraverted [sic] Sentencing Issues To

[sic] For Which the Court May Be Disqualified From

Making Factual Findings[I,]" "Motion For An Order To

4 B

The United States Attorney To Deliver To The Court

Documents And Reports Subpoened [sic] For The

Sentencing Hearing For the Defense To Inspect To

Prepare For The Hearing [,|" " Motion To Sentence

Under § 3553 And § 3553(A)(2)[,|" "Motion for Relief

from Prosecutorial Sentencing Misconduct,

Vindictiveness, Unconstitutional and Selective

Guideline Sentence Customs and Practices],]" and

"Third Motion for § 3553(a)(4)/Sentencing Guideline

Departure/Variance; Unintended Post - Booker

k

Consequences Pre-Mandator Guideline Repeal of

1 y f

Parole Sentence Alternative[.]!" Judge Greer denied

a4

virtually all of the motions, which in’ numerous

y

instances caused Mr. Moncier to file a "renewed" motion

of essentially the same substance, which Judge Greer

denied.

Judge Greer scheduled Vassar's’ sentencing

hearing for October 28, 2006, which was before the date

on which one of Vassar's co-conspirators was scheduled

to be sentenced. For tactical reasons, Mr. Moncier

wanted the co-conspirator to be sentenced first, and he

therefore moved to adjourn Vassar's hearing on October

19 and again on October 26, citing his preference

regarding the sentencing sequence and _ otherwise

asserting that he needed more time to prepare for the

hearing. Judge Greer denied the motions, but adjourned

the hearing anyway, to November 17 - which still came

before the co-conspirator’s scheduled hearing - because

another of his cases had created a conflict for the

original hearing date. In the meantime, Mr. Moncier

Pet. Appx. 4

filed another motion to adjourn, which Judge Greer

denied, and then yet another, which Judge Greer did not

rule upon because it was filed the night before the

hearing.

When Vassar's sentencing hearing began on

November 17, Mr. Moncier announced that he had an

"emergency matter” to discuss with the court, namely, a

potential onflict of interest arising from his

simultaneous representation of Vassar and Grooms.

When asked to identify the basis for the conflict, Mr.

Moncier at first demurred, requesting that "he be

permitted to present this to [another] district court

judge that will not be making factual findings to my

chent[.]". Before long, however, Mr. Moncier allowed

that the basis was that the government had told him the

day before that Grooms had implicated Vassar in certain

drug transactions. Mr. Moncier then spoke at

considerable length about why he thought an

"independent attorney” should be appointed for Vassar

to discuss with him whether he wished to retain Mr.

Moncier as his lawyer for purposes of his sentencing.

Mr. Moncier also suggested that Vassar's sentencing

hearing - t.e., the one then underway - be adjourned

pending the resolution of the potential conflict

After taking about a twelve-minute recess to

consider the matter, Judge Greer denied Mr. Moncier's

various requests. Judge Greer observed that "[tlo the

extent, Mr. Moncier, that there is a possibility now that

Mr. Vassar knows information about other people who

may be clients of yours, you've known about that for

months and months and months." Judge Greer also

stated that ‘I'm simply not willing to postpone this

[sentencing hearing] on the basis that there now exists

in your mind a conflict that should have been readily

Pet. Appx. 5

apparent to you six or seven months ago.” In response,

Mr. Moncier stated that "I must request the court to

permit me to withdraw from representing Mr. Vassar

because J cannot effectively advise Mr. Vassar as to how

to proceed this morning at the sentencing hearing{.}"

(Emphasis added.)

Mr. Moncier then requested a bench conference

out of Vassar's hearing, which Judge Greer reluctantly

granted. During the conference Mr. Moncier asserted,

among other things, that there was a "precalculated

plan of the government .. . to sabotage Mr. Vassar's

position” at the hearing; that "they [i.e., the prosecution]

don't want people to hire me to try my trials”; that the

government was attempting "to attack Herb Moncier”;

and that "I'm not going to walk into this trap.” When

judge Greer asked what he meant by the latter

comment, the following exchange occurred:

Moncier: I mean uf I have to sit there and remain

[mute], | will sit there and remain [mute].

The Court: In other words, you wouldn't provide him a

)

defense’

Moncier: [ can't provide him a defense. It would be

an ineffective assistance of counsel to do so. Everybody

is walking into a 2255 in this situation.

Mr. Moncier then continued:

If my client has known something, as remote as it might

be, that pertains to Harold Grooms, that is that Harold

Grooms offered to give him some drugs, if he knows

that, and if he understands that that is within these

tings that the government was wanting, that he need to

know that. He [i.e., Vassar] isn’t going to tell me if

Pet. Appx. 6

Harold Grooms said that because he knows I represent

Harold Grooms.

(Emphasis added.)

At that poimt, Judge Greer expressed two

concerns. First, he said, "Mr. Moncier, this is, I believe

the fifth time in two weeks that you've attempted to get

this sentencing hearing continued. What's really going

on here? What's going on? To which Mr. Moncier

responded: "What's going on here is that I think the

government is trying to set me up... . [Bjecause I have

tried a number of cases successfully, including this case,

because I have the reputation of trying cases against the

government and not doing what they want in this

community, they're coming after me.”

Second, Judge Greer stated that "the one thing

that causes me the most concern about this is... your

statement that because you represent Harold Grooms,

your client won't tell you the truth; and if that's the

case, I need to do something about that." Mr. Moncier

then began to backtrack but Judge Greer reiterated his

concern and took a short recess to consider the issue. By

that time the hearing had already consumed to and a

half hours, all of which had been devoted to Mr.

Moncier's potential conflict.

Upon returning, Judge Greer said he had given

the conflict issue "a little more thought” and offered to

"give each one of you an opportunity to briefly address it

further, if you wish to do so." Mr. Moncier took that

opportunity, speaking for nearly 15 minutes with little

hindrance from Judge Greer. During that statement,

Mr. Moncier reiterated his theory that the government

had "set this up." But more important was Mr.

Moncier's pirouette on the conflict issue; there was, it

appears, not a conflict after all. In flat contradiction to

Pet. Appx. 7

what he had said an hour earlier, Mr. Moncier stated

that " | had absolutely and I have today no reason to

beheve that I have [an] actual conflict of interest

between Harold Grooms and Michael Vassar, none, and

I don't"; and further that "Mr. Vassar has also

instructed me that he wants to go forward with

sentencing today." Mr. Moncier then stated, no less

than three times, that "Mr. Vassar wants to address the

court" regarding his choice of counsel. /d.

Judge Greer wanted to speak to Vassar as well.

But first he had some words for Mr. Moncier:

Mr. Moncier, you just made some statements

about what you know about this court's

attitudes about you and the way you do

things. There have been a number of

occasions when I have complimented you in

the open courtroom on the success you've had

in defending criminal defendants in this

court. Contrary to what you might see as

some disappointment on my part when you

set an acquittal, that’s not the case. I've

never been disappointed or upset when

you've gotten am acquittal in this court, nor

have I expressed an overall dishke on the

way your present your cases.

What I[ have said to you on numerous

occasions is that ‘o not hke the lack of

civility that you bring to cases; that I do not

like the lack of candor that you often bring to

cases; that I do not lke the fact that you on

occasion misrepresent facts before a jury or

before a witness; and I don't hke the

aspersions you cast, the personal aspersions

that you cast at times upon the professional

who oppose you, nor do I hke the aspersions

Pet. Appx. 8

you cast upon the court at times. You know

very well that I did not approve of comments

you made about the magistrate judge in this

court in the pleadings you filed before this

court. I do not like the fact that you'll make

an argument before the jury that I sustained

an objection to or, or instructed you not to

make. That happened in Mr. Vassar's other

case where I sustained an objection and you

turned around and made the same argument

again. That has absolutely nothing - none of

that has absolutely anything at all to do with

Mike Vassar's sentence out to be in this case.

You think the government is out to get you

because you have success. You think the

court is against you because you have

success. Aside and apart from the egotistical

implications that that statement contains,

they're [sic] just simply wrong. I don’t resent

you the success you've had here. Every

client - I've bent over backwards in this case

from the very beginning to make sure that

Mr. Vassar got the counsel of his choice in

this case.

It does, however, bother me in the addition

that you've told me in a side-bar conference

this morning that if this hearing goes

forward today, you intend to sit there at

counsel table mute and render ineffective

assistance of counsel of Mr. Vassar; and now

you tell me that you're prepared to go

forward, Mr. Vassar wants to go forward.

Those are the kinds of things, Mr. Moncier,

Pet. Appx. 9

that give me heartburn about your conduct

You' can't have it both ways.

Judge Greer then attempted to speak to

Vassar, as Moncier had suggested.

The Court:

Vassar:

The Court:

Vassar:

The Court:

Vassar:

Mr. Vassar, here's the court's

concern. When we have this

sentencing hearing I want your

lawyer to ask whatever

questions are necessary to ask

to adequately present your case

to this court. I don't want you

represented by a lawyer who is

reluctant to ask questions for -

out of concern about what the

answers might be as they relate

to Harold Grooms. I don't want

your lawyer to be in a position

to where he is reluctant to calla

witness for fear that’ the

government might ask about

Harold Grooms and he doesn't

know what the witness is going

to say. you understand what

I'm saying?

Yes, sir.

I want your lawyer's loyalty to

be to you -

That’ what I want, your Honor.

-and nobody else.

That's what I want.

The Court:

Vassar:

The Court:

Moncier:

The Court:

Monclier:

The Court:

Moncier:

The Court:

Moncier:

Pet. Appx. 10

Now you understand how those

conflicts ca arise in the context

of this case with Mr. Moncier

representing Harold Grooms

and representing you at the

same time?

I understand.

Okay. It's a very simple

question then, understanding

how those conflicts can arise, do

you want Mr. Moncier_ to

continue representing you in

this case or do you want me to

see if I can find somebody who

has no connection with any

other codefendant or potential

codefendant in this case?

Once again, you honor -

Mr. Moncier -

He makes

Mr. Moncier, you be quiet.

May I approach the bench?

You may stand there and do

what I told you to do until Mr.

Vassar answers this question.

For the record, you Honor, |

object without him having-

Pet. Appx. 11

The Court: Mr. Moncier, one more word

and you're going to jail.

Moncier: May I speak to my-

The Court: Officers take him into custody.

We'll be in recess.

C.

Judge Greer released Mr. Moncier less than an

hour later, and stated that he would not summarily

punish Mr. Moncier for criminal contempt under Fed. R.

Crim. P. 42(c). Instead, at the request of Mr. Moncier's

attorney, Judge Greer directed that the government

formally charge Mr. Moncier with two counts of criminal

contempt, pursuant to 18 U.S.C. §§ 401(1) and (3). Mr.

Moncier thereafter moved to disqualify Judge Greer

from the contempt trial, arguing that the charges

"involved disrespect toward the court" within the

meaning of Rule 42(a)(3). Judge Greer denied th

motion.

Judge Greer presided over Mr. Moncier's

contempt trial on April 24, 2007. The prosecution

introduced the transcript of the November 17, 2006

hearing, and rested. Moncier then testified in his own

defense, asserting that his recalcitrance was necessary

to protect his client's rights. In a written decision five

weeks later, Judge Greer found Moncier guilty of both

charges. Judge Greer thereafter sentenced him to one

year of probation and a $5,000.00 fine.

The appeal followed

Pet. Appx. 12

Mr. Moncier argues that his conviction should be

reversed and the charges against him dismissed.

Specifically, he argues that the evidence at trial was

insufficient to support his conviction. Our review of this

issue is limited to whether any rational finder of fact

could have found the elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979). The elements of criminal contempt are (1)

that the defendant engaged in "misbehavior," (2) that

the misbehavior obstructed the administration of justice,

(3) that the misbehavior occurred in the presence of the

court, and (4) that the defendant acted with "intent to

obstruct" Vaughn v. City of Flint, 752 F.2d 1160, 1167

(6th Cir. 1985).

The record permits a finding of these elements

here. Mr. Moncier indisputably misbehaved at the

November 17, 2006 hearing, and that misbehavior

obstructed the court’s efforts not only to proceed

generally with Mr. Vassar’s sentencing, but also

specifically to ask Mr. Vassar whether he wished to

retain Mr. Moncier as counsel. And there is not doubt

that the Mr. Moncier's obstruction was intentional. Mr.

Moncier essentially admits as much, but contends he

had good reason for the obstruction - namely, as he

testified at trial and now argues to this court, that he

had an ethical duty to obstruct Judge Greer's

questioning of his client. The contention is beside the

point, however, for purposes of determining whether the

record support his conviction. It plainly did.

But the contention warrants comment in its own

right. Mr. Moncier's contention, specifically, is that his

"duty to confer and advise Vassar necessarily include{d]

potential obstruction of Judge Greer questioning Vassar

in the presence of the prosecution and FBI[.]" Moncier

Br. at 5 (emphasis added). The Tennessee Association of

Pet. Appx. 13

Criminal Defense lawyers makes 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 appropriate, and even

necessary, for Moncier, rather than Judge Greer, to take

contro] of the courtroom.

To all of which there is a simple answer: There is

not 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 remedy.

“Lawyers are required to obey even incorrect orders; the

remedy is on appeal." In re Dellinger, 502 F.2d 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 trial judge,

not the lawyer for a criminal defendant nor the lawyer

for the United States." May 30, 2007 Opinion and Order

at 23.

We therefore reject Mr. Moncier's arguments for

reversal of his conviction and dismissal of the charges

against him.

B

Mr. Moncier next argues that his conviction and

sentence should be vacated, and the case remanded for

trial before a different district court judge. Mr. Moncier

bases this argument on Fed. R. Crim. P. 42(a)(3), which

provides that, "[iJf the criminal contempt involves

disrespect toward or criticism of a judge, that judge is

disqualified from presiding at the contempt trial or

Pet. Appx. 14

hearing unless the defendant consents.” Here, Mr.

Moncier's refusal to allow Judge Greer to question his

chent was the final event giving rise to the charge of

contempt. In a contempt case, however, "the final event

in an unfortunate chain of occurrences [cannot] be

realistically considered apart from what went before."

United States v. Combs, 390 F.2d 426, 430 (6th Cir.

1968). We therefore consider whether Mr. Moncier's

final recalcitrance was disrespectful towards Judge

Greer when viewed in the context of the record as a

whole.

Judge Greer himself commented several times on

that record. In addressing Mr. Moncier at the close of

his contempt trial, Judge Greer stated that "the most

bothersome aspect" of the case to him was "the

accusations that have been made throughout the course

of these proceedings that this court was somchow biased

or prejudiced against either you or your client in the

Vassar case; and as I indicated in the order [denying the

motion to disqualify], those certainly are allegations

that could have been found to be personally offensive to

this court[.]" Judge Greer also admonished Mr

Moncier, correctly, that "[{i]/t doesn't make any difference

who is sitting up here, the institution, the court,

deserves to be treated with respect and decorum."

For two reasons, however, Judge Greer held that

the charged contempt did not require’ his

disqualification under Rule 42(a)(3). First, Judge Greer

expressed a concern that, if construed to require his

disqualification, the rule would "basically allow [] a

criminal defendant to pick his or her trial judge" by

acting contemptuously towards any judge whom the

defendant did not want to preside over his or her case.

That would be true, however, only with respect to the

contempt charge, not for any underlying (and likely

Pet. Appx. 15

more serious) charge for which the defendant is

prosecuted. And in any event the rule says what it says

Second, the record makes clear that Judge Greer

tried simple to rise above taking personal offense from

Mr. Moncier’s conduct towards him. In that regard,

Judge Greer's finding that Mr. Moncier's conduct was

not disrespectful towards him personally, in a manner

requiring disqualifications, can be attributed less to an

error of judgment, than to an excess of magnanimity

We take a less forgiving view of Mr. Moncier's conduct

and we conclude that, fairly, considered, it did involve

disrespect towards Judge Greer within the meaning of

the rule, with the ironic consequence that he gets a new

trial.

The trial, however, 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

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

Mr. Moncier’s conviction and sentence are

vacated, and the case remanded for trial before a

different district court judge.

Pet. Appx. 16

No. 07-6053

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee,

ORDER

HERBERT S. MONCIER

Defendant-Appellant

FILED

September 24, 2009

LEONARD GREEN, CLERK

BEFORE: DAUGHTREY, ROGERS,

KETHLEDGE, Circuit Judges.

The court having received a petition for rehearing

en banc, which was circulated to all active judges of this

court, none of whom requested a vote on the suggestion

for rehearing en banc, the petition for rehearing has

been referred to the original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. Accordingly, the

petition is denied.

ENTERED BY ORDER OF THE COURT

Leonard Green

Clerk

Pet. Appx. 17

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

Wilham K. Suter

Clerk of the Court

(202) 479-3011

December 15, 2009

Mr. Herbert S. Moncier

775 Bank of America Building

550 Main Avenue

Knoxville, TN 37902

Herbert S. Moncier

v. United States

Application No. 09A581

Dear Mr. Moncier:

The application for an extension of time within

which to file a petition for a writ of certiorari in the

above-entitled case has been presented to Justice

Stevens, who on December 15, 2009 extended the time

to and including February 21, 2010.

This letter has been sent to those designated on

the attached notification list.

Sincerely,

William K. Suter, Clerk,

by

Ruth Jones

Case Analyst

Pet. Appx. 18

EK DTN Judgment in a Criminal Case (Rev. 3/04)

Sheet 1

United States District Court

Eastern District of Tennessee

UNITED STATES OF AMERICA

v.

HERBERT S. MONCIER

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

Case Number: 2:07-CR-40-001

Ralph Harwell & John 'T’. Rogers

Defendant's Attorney

THE DEFENDANT:

| |] pleaded guilty to count(s):

[ } pleaded nolo contendere to count(s) which was

accepted by the court

[x] was found guilty on count(s) One after a plea of not

guilty

ACCORDINGLY, the court has adjudicated that the

defendant is guilty of the following offense(s):

Title & Section

L8USC 401(1)

Nature of Offense

Criminal Contempt

Date Offense Concluded

11/17/06

Count Number(s)

Title & Section

18USC 401(38)

Nature of Offense

Criminal Contempt

Date Offense Concluded

11/17/06

Count Number(s)

The defendant is sentenced as provided in pages 2

through 5 of this judgment and the Statement of

reasons. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984 and 18 U.S.C. § 3553.

[ } The defendant has been found not guilty on

count(s) _

[ ] Count(s)_____[] 1s [J are dismissed on the motion of

the United States.

IT IS ORDERED, that the defendant shall notify

the United States Attorney for the district within 30

days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

Pet. Appx. 20

assessments imposed by this judgment are fully paid. If

ordered to pay restitution, the defendant shall notify the

court and the United States attorney of any material

change in the defendant's economic circumstances.

a ll

Date of Imposition of Judgment

Signature of Judicial Officer

J. RONNIE GREER, United States District Judge _

Name & Title of Judicial Officer

a seas

Date

EDTN Judgment in a Criminal Case (Rev. 3/04)

Sheet 4 - Probation

Judgment- Page 2 of 5

DEFENDANT: HERBERT S. MONCIER

CASE NUMBER: 2:07-CR-40-001

PROBATION

The defendant is hereby place on probation for a term of

1 year.

The defendant shall not commit another federal, state,

or local crime.

The defendant shall not unlawfully possess a controlled

substance. The defendant shall refrain from any

Pet. Appx. 21

unlawful use of a controlled substance. The defendant

shall submit to one drug test within 15 days of

placement on probation and at least two periodic drug

tests thereafter, as determined by the court.

testing conditions is suspended,

determination that the defendant

{x} The above dru

ao

=)

S

based on the court’

poses a low risk of future substance abuse. (Check, if

applicable)

[x} The defendant shall not possess a firearm,

destructive device, or any other dangerous weapon.

(Check, if applicable)

[ ] The defendant shall cooperate in the collection of

DNA as directed by the probation officer. (Check, if

applicable)

{| | The defendant shall register with the state sex

offender registration agency in the state where the

defendant resides, works, or is a student, as directed by

the probation officer. (Check, if applicable)

[ ] The defendant shall participate in an approved

program for domestic violence. (Check, if applicable)

If this judgment imposes a fine or a restitution

obligation, it shall be a condition of probation that the

defendant pay any such fine or restitution in accordance

with the Schedule of Payments set forth in the Criminal

Monetary Penalties sheet of this judgment.

The defendant shall comply with the standard

conditions that have been adopted by this court (set

forth below). The defendant shall also comply with the

additional conditions on the attached page.

Pet. Appx. 22

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial district

without permission of the court or probation officer;

2) the defendant shall report to the probation officer and

shall submit a truthful and complete written report

within the first five days of each month;

3) the defendant shall answer truthfully all inquiries by

the probation officer and follow the instructions of the

probation officer;

1) the defendant shall support his or her dependants

and meet other family responsibilities;

5) the defendant shall work regularly at a lawful

occupation, unless excused by the probation officer for

schooling, training, or other acceptable reasons;

6) the defendant shall notify the probation officer at

least ten days prior to any change in residence or

employment;

7) the defendant shall refrain from excessive use of

alcohol and shall not purchase, possess, use, distribute,

or administer any controlled substance or any

paraphernalia related to any controlled substances,

except as prescribed by a physician;

8) the defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered;

9) the defendant shall not associate with any persons

engaged in criminal activity and shall not associate with

any person convicted of a felony, unless granted

permission to do so by the probation officer;

10) the defendant shall permit a probation officer to visit

him or her at any time at home or elsewhere and shall

permit confiscation of any contraband observed in plain

view of the probation officer:

11) the defendant shall notify the probation officer

within seventy-two hours of being arrested or

questioned by a law enforcement officer;

12) the defendant shall not enter into any agreement to

act as an informer or a special agent of a law

enforcement agency without the permission of the court;

13) as directed by the probation officer, the defendant

shall notify third parties of risks that may be occasioned

by the defendant's criminal record or personal history or

characteristics and shall permit the probation officer to

make such notifications and to confirm the defendant's

compliance with such notification requirement.

EDTN Judgment in a Criminal Case (Rev. 3/94)

Sheet 4A - Probation

Judgment - Page 3 of 5

DEFENDANT: HERBERT S. MONCIER

CASE NUMBER: 2:07-CR-40-001

SPECIAL CONDITIONS OF SUPERVISION

1) You shall attend and complete an anger management

class within 6 months.

2) You shall complete a 3 hour course of Ethics and

Professionalism which shall be in addition to any other

requirement and which shall be completed within 6

months from the date of this order.

3) You shall complete 150 hours of community

service work.

4) This shall be a term of supervised probation only

to the extent that the special conditions of probation

be monitored.

E DTN Judgment in a Criminal Case (Rev. 3/04)

Sheet 5 - Criminal Monetary Penalties

Judgment - Page 4 of 5

DEFENDANT: HERBERT S. MONCIER

CASE NUMBER: 2:07-CR-40-001

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total

criminal monetary penalties in accordance with the

schedule of payments set forth on Sheet 6. The

assessment is ordered in accordance with 18 U.S.C. §

3013.

Totals:

Assessment

$10.00

Fine

$5,000.00

Restitution

$

| ] The determination of restitution is deferred until __.”

An Amended Judgment in a Criminal Case (AO 245C)

will be entered after such determination.

[ } The defendant shall make restitution (including

community restitution) to the following payees in the

amounts listed below.

If the defendant makes a partial payment, each payee

shall receive an approximately proportioned payment,

unless specified otherwise in the priority order or

percentage payment column below. However, if the

United States is a victim, all other victims, if any, shall

receive full restitution before the United States receives

any restitution, and all restitution shall be paid to the

victims before any restitution is paid to a provider of

compensation, pursuant to 18 U.S.C. § 3664

Name of Payee

* Total Amount of Loss

Amount of Restitution Ordered

Priority Order or Percentage of Payment

Totals:

| ] If applicable, restitution amount ordered pursuant to

plea agreement $

The defendant shall pay interest on any fine or

restitution of more than $2500, unless the fine or

restitution is paid in full before the fifteenth day after

the date of judgment, pursuant to 18 U.S.C. § 3612(f.

All of the payment options on Sheet 6 may be subject to

penalties for delinquency and default pursuant to 18

U.S.C. §3612(g).

{ ] The court determined that the defendant does not

have the ability to pay interest, and it is ordered that:

Pet. Appx. 26

{ }] The interest requirement 1s waived for the [ ] fine

and/or [ } restitution.

{| |} The interest requirement for the [| ] fine and/or [ |

restitution is modified as follows:

*Findings for the total amount of losses are required

under Chapters 1LO9A, 110, 110A, and 113A of Title 18,

United States Code, for offenses committed on or after

September 13, 1998 and before April 23, 1996.

E DTN Judgment in a Criminal Case (Rev. 3/04)

Sheet 6 - Schedule of Payments

Judgment - Page 5 of 5

DEFENDANT: HERBERT S. MONCIER

CASE NUMBER: 2:07-CR-40-001

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment

of the total criminal monetary penalties shall be due as

follows:

A [x] Lump sum payment of $5010.00 due immediately,

balance due

| | not later than __, or

| |] in accordance with [ ] C,[] D, or [|] E or [] F below; or

B [ ] Payment to begin immediately (may be combined

with [ ] C, [| D, or [ ] F below); or

(e.g., equal, weekly, monthly,

quarterly) installments of $_ over a period of __ (e.g.,

C [ ] Payment in

Pet. Appx. 27

months or years), to commence (e.g., 30 or 60 days)

after the date of this judgment; or

D {| ] Payment in (e.g. equal, weekly, monthly,

quarterly) installments of $__ over a period of ___ (e.g.,

months or years), to commence _ (E.g., 30 or 60 days)

after release from imprisonment to aéeterm of

supervision; or

EK | | Payment during the term of supervised release will

commence with O (e.g 30 or 60 days) after release from

imprisonment. The court will set the payment plan

based on an assessment of the defendant's ability to pay

at that time; or

Fr { ] Special instructions regarding the payment of

criminal monetary penalties:

Unless the court has expressly ordered otherwise, if this

judgment imposes a period of imprisonment, payment of

criminal monetary penalties is due during the period of

imprisonment. Unless otherwise directed by the court,

the probation officer, or the United States attorney, all

criminal monetary penalties, except those payments

made through the Federal Bureau of Prisons' Inmate

Financial Responsibility Program, shall be made to U.S.

District Court, 220 W. Depot St. Suite 200,

Greeneville, TN 37743. Payments shall be in the form

of a check or a money order, made payable to U.S.

District Court, with a notation of the case number

including defendant number.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

[ ] Joint and Several

Defendant Name, Case Number and Joint and Several

Amount

The defendant shall pay the cost of prosecution

pa! }

| |] The defendant shall pay the following court cost(s):

J

| | The defendant shall forfeit the defendant's interest in

the following property to the United States:

Payments shall be applied in the following order: (1)

assessment, (2) restitution pmncipal, (3) restitution

interest, (4) fine principal, (5) community restitution; (6)

fine interest (7) penalties, and (8) costs, including cost of

prosecution and court cost:

United States Department of Justice

United States Attorney

Eastern District of Tennessee

Please reply CO the Greeneville Office

Headquarters

800 Market Street, Suite 211

Knoxville, Tennessee 37902

423/545-4167

FAX 423/545-4167

1110 Market Street, Suite 301

Chattanooga, Tennessee 37402

123/752-5140

FAX 423/752-5150

202 Sunset Drive, Suite 509

Johnson City, Tennessee 37604

423/282-1889

FAX 423/282-0840

220 West Depot Street, Suite 423

Greeneville Tennessee 37743

423/639-6759

FAX 423/63-6451

November 16, 2006

By facsimile telecopier and e-mail

Herbert S. Moncier, Esq

550 Main Avenue, Suite 775

Knoxville, Tennessee 37902

Facsimile: (865)546-7746

Pet. Appx. 30

Re: United States v. Michael Vassar

E.D. Tenn. Case No. 2:05-CR-75

Dear Mr. Moncier:

In accordance with the Court's oral order at tk

close of the hearing on November 15, 2005. I hav

reviewed the FBI and TBI investigative files to determir

if there is any information for which disclosure may tk

required under Brady or Giglio which has not alread

been disclosed. A review of the reports revealed tk

following information concerning Mr. Vassar. None of tk

information appears to be exculpatory or mutigatin:

however, the information is being disclosed in any ever

in light of the defense’s expansive reading of whi

information you consider relevant to a_= sentencir

determination.

On March 28, 2002, Chris Shults advised agents

that Mike Vassar was_ selling "“hydros”

(hydrocodone tablets) and cocaine. Shults

stated that he believed and most of the

transactions took placc in Vassar's garage.

Shults said he has been in Vassar's garage and

in his home. Vassar is well known for "fixing

cars." Vassar seems to enjoy having sex with 20

year old girls. Shults advised that Vassar

trades cocaine to the girls for sex.

On April 16, 2002, Chris Shults advised agents

that Mike Vassar had one-half ounce or more of

cocaine stored in the burglar alarm box at

Vassar's garage.

On April 25, 2002, Chris Shults advised agents

that a man known as "Bledsoe" helped Mike

Vassar on weekends at Vassar's garage next to

Vassar's house dismantling and reassembling

Pet. Appx. 31

stolen vehicles. Shults also stated that Vassar

was selling cocaine to Darryl Burgin who works

at Ray Hawk's auto salvage, H-1 Auto, every

Friday. Shults also reported that Vassar had

recently told Ray Hawk that Vassar had sold

three air bags to an unknown male and that the

unknown male had told law enforcement that he

had purchased the air bags from Vassar; Vassar

was inguiring of Hawk if the air bags could be

traced back to any particular vehicle.

Michael Carl Vassar Letter to Mr. Moncier

E.D.Tenn 2-05-CR-75

November 16, 2006

Page 3

In October 2002, Chris Shults advised agents

that Mike Vassar was purchasing "hydros"”

(hydrocodone tablets) from a third individual.

On November 4, 2002, Chris Shults advised

agents that a third person was supplying Mike

Vassar with hydrocodone, and another person

was supplying Vassar and Vassar's girlfriend,

Marcella Grooms, with hydrocodone.

On December 12, 2002, Chris Shults advised

agents that a third person was supplying Mike

Vassar with cocaine. The third person told

Shults that he did not completely trust Vassar

and was only doing smaller deals with him.

On March 18, 2003, Chris Shults advised agents

that Pat Taylor was borrowing Mike Vassar's

camping trailer and would be using it to go to

the races in Bristol, Tennessee, during the

weekend of March 21 through 23, 2003.

Pet. Appx. 32

On November 2, 2004, Chris Shults advised

agents that Mrke Vassar was "on oxycontin

bad.”

On August 18, 2005, Chris Shults advised

agents that Lynn Phillips had supphed cocaine

to Mike Vassar, Shults, Mark Thornton, and to

other persons.

On October 12, 2005, Mark Thornton advised

agents that Thornton did not complete any drug

transactions with Mike Vassar’ because

Thornton feared Vassar had advised law

enforcement about Thornton's tmp to Myrtle

Beach with Roger Gunter in May 2004 which

resulted in Gunter's arrest. Thornton also

related in the interview that Vassar had told

Thornton, while they were both in custody in

the Greene County Detention Center, that

approximately two weeks before Vassar was

arrested on August 10, 2005, Harold Grooms

had contacted Vassar and indicated that he,

Grooms would help Vassar in any way. Grooms

also offered to supply Vassar with needed drugs.

However, according to Vassar, he did not

complete any drug transactions with Grooms

prior to his arrest.

On July 6, 2006, Dewey Lynn Phillips was

interviewed at the Washington County

Detention Center. During a_ polygraph

examination, Phillips was asked two test

questions:

(A)Concerning the $80,000 found at the

traffic stop, was any of it drug money?

(B)Did you use any drug money to finance

any spec homes?

Pet. Appx. 33

Phillips answered "no" to both questions and

the examiner found the responses to the

questions were indicative of deception.

Phillips was advised of the results and re

interviewed. Philips told agents. that

$40,000 of the approximately $80,000 cash

seized from him by the Tennessee Highway

Patrol in March 2005 was drug money he

had received from Chris Shults, Mark

Thornton, and Mike Vassar. Phillips

admitted that he had previously hed to

investigators about the source of the money.

Phillips said most of the $40,000 came from

Chris Shults with the rest coming from

Thornton and Vassar. Phillips claimed that

the remainder of the money belonged to

Gilda Cuberson.

Michael Carl Vassar Letter to Mr. Moncier

E.D.Tenn. 2:05-CR-75

November 16, 2006

Page 3

Sincerely,

JAMES R. DEDRICK

UNITED STATES ATTORNEY

By /s M. Neil Smith

Assistant United States Attorney

Pet. Appx. 34

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE AT

sREENEVILLE

UNITED STATES OF AMERICA

No. 2:05-CR-75

Ys

MICHAEL VASSAR

)

)

)

)

)

)

)

In Re: HERBERT S. MONCIER

NOTICE

It is hereby ORDERED that the trial of the

criminal contempt charge against Herbert Moncier shall

be held at 9:00 a.m. on Tuesday, April 24, 2007 at the

James H. Quillen United States Courthouse in

Greeneville, Tennessee and that Assistant United States

Attorney Robert M. Reeves is appointed, pursuant to the

provisions of Fed. R. Crim. P. 42(a)(2), as the prosecutor

in the case. This will allow the defendant a reasonable

time to prepare a defense.

SPECIFICATION OF THE CHARGE:

Count 1 - It is charged that Mr. Moncier's conduct

in the course of a hearing held on November 17, 2006, in

knowing violation of the clear and specific directions

from the Court, interrupted the orderly process of the

hearing. As set out in the transcript of that hearing,

Mr. Moncier's disruptive conduct consisted of the

following:

THE COURT: MR. VASSAR, HERE'S THE

COURT'S CONCERN. WHEN WE HAVE THIS

SENTENCING HEARING I WANT YOUR LAWYER

TO ASK WHATEVER QUESTIONS ARE NECESSARY

Pet. Appx. 35

TO ASK TO ADEQUATELY PRESENT YOUR CASE

TO THE COURT. ft DONT WANT YOU

REPRESENTED BY A LAWYER WHO JIS

RELUCTANT TO ASK QUESTIONS FOR - OUT OF

CONCERN ABOUT WHAT THE ANSWERS MIGHT

BE AS THEY RELATE TO HAROLD GROOMS. I

DON'T WANT YOUR LAWYER TO BE IN A POSITION

TO WHERE HE [IS RELUCTANT TO CALL A

WITNESS FOR FEAR THAT THE GOVERNMENT

MIGHT ASK ABOUT HAROLD GROOMS AND HE

DOESN'T KNOW WHAT THE WITNESS IS GOING TO

SAY. YOU UNDERSTAND WHAT I'M SAYING?

MR. VASSAR: YES SIR.

THE COURT: [I WANT YOUR LAWYER'S

LOYALTY TO BE TO YOU -

MR. VASSAR: THAT'S WHAT I WANT.

THE COURT: NOW, YOU UDNERSTAND

HOW THOSE CONFLICTS CAN ARISE IN THE

CONTEXT OF THIS CASE WITH MR. MONCIER

REPRESENTING HAROLD GROOMS AND

REPRESENTING YOU AT THE SAME TIME?

MR. VASSAR: f UNDERSTAND.

THE COURT: OKAY. IT’S A VERY SIMPLE

QUESTION THEN, UNDERSTANDING HOW THOSE

CONFLICTS CAN ARISE, DO YOU WANT MR.

MONCIER TO CONTINUE RPRESENTING YOU IN

THIS CASE OR DO YOU WANT TO SEE IF I CAN

FIND SOMEBODY WHO HAS NO CONNECTION

WITH ANY OTHER CODEFENDANT OR POTENTIAL

CODEFENDANT IN THIS CASE?

Pet. Appx. 36

MR. MONCIER: ONCE AGAIN, YOUR

HONOR -

THE COURT: MR. MONCIER -

MR. MONCIER: HE MAKES -

THE COURT: MR. MONCIER, YOU BE

QUIET.

MR. MONCIER: MAY [ APPROACH THE

BENCH?

THE COURT: YOU MAY STAND THERE

AND DO WHAT I TOLD YOU TO DO UNTIL MR.

VASSAR ANSWERS THIS QUESTION.

MR. MONCIER: FOR THE RECORD, YOUR

HONOR, I OBJECT WITHOUT HIM HAVING -

THE COURT: MR. MONCIER, ONE MORE

WORD AND YOU'RE GOING TO JAIL.

MR. MONCIER: MAY ISPEAK TO MY-

THE COURT: OFFICERS TAKE HIM INTO

CUSTODY. WE'LL BE IN RECESS.

(RECESS AT 12.47 P.M.)

SO ORDERED.

ENTER:

s/J. RONNIE GREER

UNITED STATES DISTRICT JUDGE

Pet. Appx. 37

UNITED STATES DISTRICT COURT FOR THE

EKASTERN DISTRCT OF TENNESSEE AT

GREENEVILLE

UNITED STATES OF AMERICA )

)

» NO. 2:07-CR-40

HERBERT S. MONCIER )

MEMORANDUM OPINION AND ORDER

On August 9, 205, Michael Vassar ("Vassar") was

indicted by the federal grand jury on charges of

possession of cocaine with intent to distribute, being a

felon in possession of ammunition, and distribution of

cocaine. [Case No. 2:05-CR-70]. Vassar was indicted on

September 13, 2005, on charges of conspiracy to

distribute and possess with the intent to distribute five

(5) kilograms or more of cocaine and distribution of

cocaine. [Case No. 2:05-CV-75]. Vassar was represented

at the trial of both cases by attorney Herbert S. Moncier

("Moncier").

This matter is before the Court on the issue of the

alleged criminal contempt of Moncier on November 17,

2006, during his representation of Vassar in case No.

2:05-CR-75. The contempt matter was tried before the

Court without intervention of a jury on April 24, 2007,

and was taken under advisement for the purpose of

making written findings of fact and conclusions of law.

FACTUAL AND PROCEDURAL BACKGROUND

On November 17, 2006, Michael Vassar was

scheduled to be sentenced by this Court after his

conviction by a jury in case No. 2:05-CR-75 of a

conspiracy to distribute and to possess with the intent to

Pet. Appx. 38

distribute cocaine. At the beginning of the hearing,

Moncier, after informing chambers of an emergency

matter to be taken up, stated that he had been supplied

with a letter from the United States on the prior day

"purporting to be a Brady disclosure." Representing to

the court that the letter raised a possible issue pursuant

to Rule 44 (c), Moncier asked "to address the Court with

the government present on the record in chambers .. ."

[Doc. 680, p.2]}

After the Court cleared the courtroom of all

present except for Moncier and Vassar, the government

agent and the Assistant United States Attorneys

representing the United States and certain court

personnel, Moncier moved for a continuance of the

sentencing hearing and that the matter be presented to

another district judge and an independent attorney be

appointed to advise Vassar concerning the Rule 44

matter. After considerable argument, these requests

were denied.

Moncier then made various further attempts to

postpone the sentencing hearing, including a motion to

withdraw as counsel for Vassar and then to withdraw

conditionally. These motions were then essentially

withdrawn after Moncier informed the Court that his

chent wished to go forward with the hearing with

Moncier representing him and that Vassar wished to

: The disclosure involved the statement of an already

convicted co-conspirator, whom Moncier had subpoenaed to testify

at the sentencing hearing, which suggested that Vassar knew

incriminating information about another of Moncier's clients,

Harold Grooms, alleged to be an unindicted co-conspirator. Moncier

argued that independent counsel should be appointed to advise

Vassar concerning the possible conflict of interest on Moncier's part

created by his representation of both Vassar and the unindicted co-

conspirator. Moncier asserted that Vassar would not be candid

with him about the matter because of the joint representation, thus

the need for independent counsel.

Pet. Appx. 39

address the Court. At the end of a lengthy hearing,

during the Court's questioning of Vassar, the following

occurred:

THE COURT: MR. VASSRA,

HERE'S THE COURT'S CONCERN.

WHEN WE HAVE THIS

SENTENCING HEARING I WANT

YOUR LAWYER TO ASK

WHATEVER QUESTIONS ARE

NECESSARY TO ASK TO

ADEQUATELY PRESENT YOUR

CASE TO THIS COURT. I DON'T

WANT YOU REPRESENTED BY A

LAWYER WHO IS RELUCTANT TO

ASK QUESTIONS FOR - OUT OF

CONCERN ABOUT WHAT THE

ANSWERS MIGHT BE AS THEY

RELATE TO HAROLD GROOMS. I!

DON'T WANT YOUR LAWYER TO

BE IN A POSITION TO WHERE HE

IS RELUCTANT TO CALL A

WITNESS FOR FEAR THAT THE

GOVERNMENT MIGHT ASK ABOUT

HAROLD GROOMS AND HE

DOESN'T KNOW WHAT THE

WITNESS IS GOING TO SAY. YOU

UNDERSTAND WHAT ['M SAYING?

MR. VASSAR: YES, SIR.

THE COURT: [| WANT YOUR

LAWYER'S LOYALTY TO BE TO

YOU -

MR. VASSAR: THATS WHAT |!

WANT.

Pet. Appx. 40

THE COURT: NOW, YOU

UNDERSTAND HOW THOSE

CONFLICTS CAN ARISE IN THE

CONTEXT OF THIS CASE WITH

MR. MONCIER REPRESENTING

HAROLD GROOMS AND

REPRESENTING YOU AT THE

SAME TIME?

MR. VASSAR: I UNDERSTAND.

THE COURT: OKAY. IT'S A

VERY SIMPLE QUESTION THEN,

UNDERSTANDING HOW ‘THOW

CONFLICTS CAN ARISE, DO YOU

WANT MR. MONCIER TO

CONTINUE REPRESENTING YOU

IN THIS CASE OR DO YOU WANT

ME TO EEF IF [f CAN FIND

SOMEBODY WHO HAS NO

CONNECTION WITH ANY OTHER

CODEFENDANT OR PTENTIAL

CODEFENDANT IN THIS CASE?

MR. MONCIER: ONCE AGAIN,

YOUR HONOR -

THE COURT: MR. MONCIER -

MR. MONCIER: HE MAKES-

THE COURT: MR. MONCIER,

YOU BE QUIET.

MR. MONCIER: MAY

APPROACH THE BENCH?

Pet. Appx. 41

THE COURT: YOU MAY STAND

THERE AND DO WHAT I TOLD

YOU TO DO UNTIL MR. VASSAR

ANSWERS THIS QUESTION.

MR. MONCIER: FOR THE

RECORD, YOUR HONOR, I OBJECT

WITHOUT HIM HAVING -

THE COURT: MR. MONCIER,

ONE MORE WORD AND YOU'RE

GOING TO JAIL.

MR. MONCIER: MAY I SPEAK TO

MY-

THE COURT: OFFICERS TAKE

HIM INTO CUSTODY. WE'LL BE IN

RECESS.

APPLICABLE LAW

Federal courts have inherent powers necessary

for them to function as an institution. Chambers uv.

NASCO, Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 115 L.Ed.

2d 27 (1991). "Courts of justice are universally

acknowledged to be vested, by their very creation, with

power to impose silence, respect, and decorum, in their

presence, and submission to their lawful mandates.” 7d.

(quoting Anderson v. Dunn, 6 Wheat. 204, 227, 5 L.Ed.

242 (1821)).

"Criminal Contempt is a crime in the ordinary

sense, Bloom v. Illinois, 391 U.S. 194, 201, 88 S. Ct.

1477, 1481, 20 L. Ed. 2d 522 (1968), and must be proven

beyond a reasonable doubt. Gompers v. Buck's Stove &

Range Company, 221i U.S. 418, 444, 31 8S. Ct. 492, 499,

55 L.Ed. 797 (1911). The judicial contempt power,

Pet. Appx. 42

however, should be exercised with restraint and

discretion. Railroad Express, Inc. v. Piper, 447 U.S. 752,

764, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980). The

traditional power of a court to punish contempt is

codified at 18 U.S.C. § 401, which provides as follows:

A court of the United States shall have

power to punish. by fine-= or

imprisonment, at its discretion, such

contempt of its authority, and none

other, as -

5 Misbehavior of any person 1n its

presence or so near thereto as to

obstruct the administration of justice;

2. Misbehavoior of any of its officers

in their official transactions:

3. Disobedience or resistance to its

lawful writ, process, order, rule,

decree, or command.

In order to support a conviction for criminal

contempt under § 401(1), the record must establish,

beyond a reasonable doubt, the existence of four (4)

elements. First, there must be evidence that the

defendant engaged in some conduct that can be

considered "misbehavior." See Vaughn v. City of Flint,

752 F.2d 1160, 1167 (6th Cir. 1985). Second, that

misbehavior must amount to an "obstruction of the

administration of justice," see id., an obstruction that

"must be... actual, not .. .theoretical...." See id. ai

1168 (citing In re McConnell, 370 U.S. 230, 234, 82 S.

Ct. 1288, 8 L. Ed. 2d 434 (1962)). Third, the contempt

must occur in the presence of the judge imposing the

Pet. Appx. 43

summary determination of criminal guilty.2 See id. at

1167. Finally, the defendant must have formed an

actual intent to cause the obstruction of justice. See id.

Thus, the improper act must be "a deliberate or

intended violation, as distinguished from an accidental,

inadvertent or negligent violation." Jd. at 1169 (quoting

TWM Manufacturing Company v. Dura Corp., 722 F. 2d

1261, 1272 (6th Cir. 1983)).

Section 401(3), on the other hand, requires proof

beyond a _ reasonable doubt of (1) resistence or

disobedience to the court's "writ, process, order, rule or

command," and (2) the act of resistence or disobedience

must be "a deliberate or intended violation, as

distinguished from an _ accidental, imadvertent or

negligent violation.” Jn re Chandler, 906 F. 2d 248, 250

(6th Cir. 1990)(quoting 7MW Manufacturing Company,

722 F. 2d at 1272). The second requirement may be

"inferred if a lawyer's conduct discloses a_ reckless

disregard for his professional duty." U.S. v. Delahanty,

A88 F.2d 396, 398 (6th Cir. 1973).

Section 401(3), in contrast to § 401(1), requires no

finding of obstruction of justice. Section 401(1) is

predicated on "misbehavior" rather than the violation of

an express order. United States v. Galin, 222 F. 3d 1123

(9th Cir. 2000). Also, the wisdom, fairness or

correctness of a court's order is not at 1ssue. "If a person

to whom a court directs an order believes that order is

incorrect that remedy is to appeal, but, absent a stay, he

must comply promptly with the order pending appeal."

The record in this case may have provided an adequate

basis for summary disposition on November 17 pursuant to Fed. R.

Crim. P. 42(b); however, at the request of Moncier's counsel that the

Court not do so, the Court chose to proceed after notice to Moncier,

the appointment of a prosecutor and a trial after giving Moncier a

reasonable time to prepare a defense. Rule 42(a).

Pet. Appx. 44

Maness v. Meyers, 419 U.S. 449, 458, 95 S. Ct. 584, 42

L.Ed. 2d 574 (1975).

ANALYSIS, FINDINGS OF FACT AND

CONCLUSIONS OF LAW

Criminal contempt of court is a very serious

matter and, when the alleged contempt involves the

conduct of an attorney appearing before the court, even

more serious. In addition, the decision whether a

criminal defense lawyer's actions are contemptuous

requires this Court to balance two very important

considerations -- the lawyer's duty to represent a

criminal defendant vigorously and zealously and the

court’s duty to administer justice in an orderly and

efficient fashion without contumacious interference by a

misbehaving attorney. This balancing of policy

considerations becomes even more difficult when dealing

with a lawyer like Moncier, an attorney who by his own

admission "pushes the envelope"? and who is described

by his own attorney as a lawyer who will pursue every

issue "to the line.”4

Also important to this Court in determining the

issues raised by this matter is the context in which the

incident of November 17, 2006, occurred. It is unlikely

that this Court, and most other courts, would have

taken the extraordinary step of citing Moncier for

contempt if the incident of November 17 had been an

3 The role of a trial attorney representing a criminal

defendant is necessarily contentious, made so by the adversary

nature of a criminal proceeding. A criminal attorney nevertheless

has a duty to conduct himself in a professional and dignified

manner.

. Presumably the line between zealous advocacy and

contemptuous conduct.

Pet. Appx. 45

isolated one.® It was not, however. The transcript of the

November 17 hearing establishes that Moncier had

interrupted the Court no fewer than 14 times during the

November 17 proceedings before the Court's order to

Moncier to say not one more word. In addition, this case

must also be considered in the context of Moncier's long

experience in the defense of criminal cases in the federal

courts. Moncier has practiced law for 38 years and his

actions of November 17, 2006, cannot be viewed as the

innocent mistake of a young, inexperienced lawyer or as

an aberrant act. Although Moncier's actions on

November 17 were decided in a "split second", his

decisions were made in the context of a long career of

trying cases and dealing with judges and courts under

circumstances where decisions and judgments often

must be made immediately and without the luxury of

extensive forethought.

Use of the court's criminal contempt power should

be made sparingly and then exercised only with great

restraint. This is especially true where the alleged

contemnor is an attorney because of the need to balance

the competing policy concerned referenced above. The

Court has never made a finding of contempt in any case,

much less that of an attorney. Dealing with this case is

perhaps the most unpleasant duty of the undersigned

since assuming the bench; however, this Court has a

clear duty to preserve the institutional integrity of the

Court and to assure that the Court's duties are carried

out through proceedings which are fair and which are

conducted with decorum.

° The 1s not to suggest that a contemnor must engage in

repeated contemptuous misbehavior before he may be held in

contempt, only that most judges show considerable restraining in

dealing with isolated acts of misbehavior. The U.S. Supreme Court

expressly rejected a multiple violation requirement in Pounders v.

Watson, 521 U.S. 982 (1997).

Pet. Appx. 46

Taking the monumental step of accusing an

attorney of criminal contempt is an act of last resort

and, in the Court's view, should be used only after all

other efforts have been exhausted to assure the

offending lawyer's compliance with the applicable rules

of professionalism and civility. Those efforts had

already been exhausted with Moncier. Throughout the

course of Moncier’s appearances before this Court, this

Court has admonished Moncier for a wide range of

misconduct, has lectured him concerning the Court's

expectations as to professionalism and civility and has

threatened him with a finding of contempt on prior

occasions, all to no avail. This case, ultimately

speaking, presents a very simple issue of whether the

presiding judicial official will control the course of the

proceedings in the courtroom or whether contumacious

lawyers will be permitted to take control.

Analysis under Section 401(4)

As set forth above, four elements must be

established beyond a reasonable doubt before the

defendant may be convicted of criminal contempt under

§ 401(1): (1) misbehavior, (2) amounting to an

obstruction of justice, (3) in the presence of the court,

and (4) with the actual intent to obstruct justice. Each

of these elements will be discussed in turn in the context

of the evidence in this case.

Misbehavior

Almost any inappropriate act or comment by a

lawyer in legal’ proceedings could be deemed

"misbehavior" and the appellate courts have never

precisely defined what constitutes sufficiently egregious

misconduct but rather have focused on a "range of

contumacious conduct disruptive of judicial

proceedings.” Pounders, 521 U.S. at 991. Mboncier's

Pet. Appx. 47

conduct in this case, however Le. repeatedly

interrupting the court after a warning not to do so and

in disobedience to the court's directive commanding his

silence - is a clear case of misbehavior as contemplated

by the statue and is well within "the range of

contumacious conduct disruptive of judicial proceedings

and damaging to the court’s authority" punishable as

criminal contempt. Id.

The Court FINDS, beyond a reasonable doubt,

that this element of the offense has been established by

the proff in this case.

The United States Supreme Court has stated the

question as to this element to be whether the proof

establishes that the misbehavior "obstructed the district

judge in the performance of judicial duty." /n_ re

McConneil, 370 U.S. 230, 234, (1962). "Such obstruction

necessarily involves an "act that will interrupt the

orderly process of the administration of justice, or

thwart the judicial process." United States v. Warlick,

742 F. 2d 113, 116 (4th Cir. 1984). Thus, the

government must show "that the defendant's acts

delayed the proceedings, made more work for the judge,

induced error or imposed unnecessary costs on the other

parties.” Am. Airlines, Inc. v. Allied Pilots Ass'n., 968 F.

2d 523, 532 (5th Cir. 1992). At a minimum, the

defendants misconduct must have "had an effect on the

proceedings, which presupposes a cause triggered by the

attorney's acts." Id. (citing United States ov.

Oberhellmann, 946 F. 2d 50, 52 (7th Cir. 1991)) United

States v. Meacham, 65 Fed. Appx. 529, 535 (6th Cir.

2003)(Daughtrey, J. dissenting).

Although Moncier argues that he lacked the

intent to obstruct justice (discussed below), he has not

Pet. Appx. 48

seriously disputed that his action on November 17, 2006,

had a disruptive effect on the proceedings and resulted

in a delay of those proceedings. One point raised by

Moncier, however, does bear some discussion here.

Moncier has asserted through his testimony at trial and

in an affidavit filed in support of his pre-trial motion to

dismiss that the Court had no right to question his

chent (i.e. the Rule 44 did not permit the Court's

questions), that he had no idea why the Court was

asking questions (except possibly to "clean up the

record") and that his chent had communicated to him

through eye contact and body language that he wished

to talk to him before answering the Court's questions.

Such assertions by Moncier lack any credibility.

As the transcript of the November 17, 2006,

proceeding reflects, it was Moncier himself who

suggested to the Court that there existed "an issue that

pertains to Rule 44(c)." [Doc. 688, page 2]. The issue

had arisen, according to Moncier, because the United

States had provided him, on the day before the

sentencing hearing, information relating to a statement

made by a co-conspirator attributing to Vassar a

potentially incriminating statement about another of

Moncier's clients, an unindicted co-conspirator. Moncier

then attempted to convince the Court to refer the matter

to another district judge fore hearing and have

independent counsel appointed to advise Vassar about

Moncier's possible conflict of interest. Moncier asserted,

during the hearing, that his client, Vassar, wasn't going

to tell (Moncier) if he had made the statement because of

his representation of the other client. [Doc. 683, page

43].6 Moncier wanted Vassar to have the benefit of

ad This episode illustrates the extent to which Moncier's

behavior on November 17 was out of control. After making the

statement that "[H]e (Vassar) isn't going to tell me (Moncier) if

Harold Grooms said that because he knows I represent Harold

Grooms,” (Doc. 683, p.43), Moncier was asked by the Court: "Mr.

Pet. Appx. 49

independent counsel's advice on whether to cooperate

with the government concerning the contents of the

alleged statement in order to seek a motion for

downward departure for his assistance. After the

vyovernment indicated that it had no interest in

debnefing Vassar, the Court denied both requests.

After further attempts to delay the sentencing

haring, Moncier informed the Court that Vassar had

told him during a recess that Vassar did not want him

|Moncier] to be disqualified [Doc. 683, p. 78], that he

{Moncier] did not “have a conflict", [/d, p. 88] and that

Vassar wanted to address the Court. [/d. pp. 88, 89]

Moncier specifically represented that if he could have

the lunch hour to work with his client, he would be

ready to proceed with the sentencing hearing at 1:30

p.m. The United States announced that it did not

oppose the proceeding going forward with Moncier

representing Vassar "if Mr. Vassar represenis . . . to the

Court that he wishes Moncier to continue as his counsel

for this sentencing hearing.” [/d., pp. 93-94] Just

minutes later, the Court asked Vassar to step to the

podium and began to question him with regard to

whether he wanted Moncier to continue as his attorney.

[t was shortly after that questioning began that the

above exchange too place, leading to this proceeding.

Moncier's insistence that rule 44 did not permit

the Court to question Vassar or that he did not know

what the Court was doing is patently absurd and simply

not credible in view of the events of November 17. Rule

Moncier, do you know what you just said to me? Moncier's answer

was: "No.” (Doc. 683, p.44)

Throughout the November 17, hearing, Moncier repeatedly

requested the Court to perform an inquiry or to permit Vassar to

address the Court, which makes Moncier's assertions that he "had

no idea” why the Court was inquiring of Vassar even more baffling.

14 in fact required the Court ("the court must promptly

nquire ‘) to question Vassar about the possible

ynflict of interest called to the attention of the Court by

his attorney. The Court would have simply ignored its

responsibility to have done otherwise See Moss v

United States, 323 F. 3d 445, 471 (6th Cir. 2003)(". .. a

trial court has the duty to inquire adequately into a trial

counsel's conflict of interest if it knows or reasonably

hould know that a particular conflict exists.") Also, in

light of Moncier's repeated requests to the Court to

question Vassar or to allow Vassar to address the Court,

is well as the government's assertion just minutes

before that the Court should determine if Vassar wanted

Moncier to continue as his attorney, Moncier's assertion

that he did not have any idea why Vassar had been

alled to the podium lack any credibility

Moncier’ claim that he knew Vassar wanted to

peak to him is likewise incredible For one thing,

Moncier testified that he made his observation upon

Vassar being called to the podium, yet, he made no

request to consult with his chent during a lengthy

exchange between the Court and Vassar (taking up

eight pages of transcript (pages 99-106) and including

efforts by Moncier to persuade the Court to rephrase its

questions), all of which occurred after Vassar was called

to the podium. Secondly, Moncier's testimony that it

was obvious during the proceeding at the podium that

Vassar wanted to talk with him conflicts with both the

transcript and with the Court's own observations. At no

time during these proceedings did Vassar ever request

time to consult with Moncier.* During the entire

Such a request would hkely have been granted and would

not have violated the Court's command to Moncier for silence

Michael Vassar was not unfamiliar with the court system nor with

a Rule 44 inquiry. The inquiry of November 17 was the third Rule

44 inquiry conducted with Vassar due to concern about Moncier's

simultaneous representation of Vassar and other chents

proceeding at the podium Vassar listene: intently to

the Court's questions and made direct eye contact with

the Court. Vassar never exhibited confusion but rather

icknowledged the Court's inquiry and hi

of the Inquiry

onable doubt.

tablished by

Moncier

the Court The

asonable doubt,

iVice

stence that he had an

unlimited du nd ripht to speak is clrent is misplaced

Moncier timony at tnal that he was only trying to protect his

hent nstitutional mghts by interrupting the Court's questior

id intended to advise his client not to waive any potential conflict

Moncier directly conflicts with Moncier

November 17 hat his client wanted to proceed

sentencing hearing represented by Mr. Moncier, that he

lid not want Moncier disqualified and that Moncier would be ready

to proceed with the hearing at 1:30 p.m

Moncier's trial testimony also appears to contradict his pre

trial affidavit where he seems to suggest that his true motivation

was that he did not want Vassar to answer the Court’s question

because "clients in criminal cases should never answer questions

pnor to being advised as to what questions they are going to be

asked and them being advised as to the purpose for the question

and whether my client should respond.” [Doc. 10-3, para 18]

Moncier cites no authority for such a view of the bounds of proper

advocacy. <A criminal defense attorney has no absolute right to

interrupt proceedings whether conducted by adversary counsel

during cross examination or by the court to advise a chent how or

whether to answer a question

if } e |} Iii ¢ mt Ot the t¢ 1} f ‘ t Ctl ryé ry’

the proof in this case

Actual intent to obstruct justice

‘Tt K ¢ jue ti0n 1n thi ist | Vnetne!

Moncier’ misbehavior obstructed justice (Qt 1d) but

rather whether he icted with the actual intent to

bstruct justice. Moncier testified unequivocally that he

lid not. As stated by the Sixth Circuit, the improper act

ust De " deliberate ind ntended violation as

listinguished from ane accidental, inadvertent = or

negligent violatior Vaughn, 752 F.2d at 1169 (quoting

I'WM Mfg. Co. v. Dura Corp., 722 ¥.2d 1261,

L1r 193

1272 (6th

»)) The Seventh Cuircurt ha tated the

tandard for judging the minimum requisite intent for

riminal contempt

fhe minimum requisite intent 1

aie fine d as a volitional ct done by on

who knows or should reasonably be

iware that his conduct is w rongtul

Of course, an actual design to subvert

the administration of justice is a mor

rievous and perhaps more culpable

tate of mind, but proof of such an evil

notive is unnecessary to establish the

ré quired intent

United States v. Seale, 461 F.2d 345, 368-69 (7th Cu

Moncier'’s misbehavior in this case was clearly

Was it done with actual

ntent to obstruct justice? Determining one’

ntentional but the question 1s:

; intent 1s

[This element usually applies in a

proceeding. See footnote 2 above

summary contempt

aAs\ but | tind that the record clearly establishes

that Moncier acted with the intent to interrupt the

orderly proce of the administration of justice and t

thwart the judicial process. First of all, Moncier is a

very expemenced criminal defense lawyer, havin

practiced for 38 years His actions on November 17

006, therefore, cannot be viewed as the antics of o1

displaced aggressiveness of an amateur lawyer but

rather as the calculated and deliberate acts of a wily

veteran He } not a novice at the practice Oo! law and

has handled hundreds of civil and criminal cases

Simply put Vioncier’ ict can be labeled neither

rece tal. inadvertent r neghgent

Si condly, M mecer own testimony reveals his

motivation and his intent. Moncier testified at trial that

he "could not n good conscience, let the Court go

forward and take a waiver from a defendant who did not

fully unaorstand the issue.”! This testimony clearly

illustrates Moncier’s intent to prevent the sentencing

hearing of Vassar from going forward on November 17

he had filed repeated motions for a continuance in the

two weeks leading up to the hearing and appeared to be

determined to prevent the hearing from going forward,

ind he appeared to be seizing upon whatever course of

(T]he question of one's intent ts not measured by a psychic

reading [the defendant's] mind but by the surrounding facts and

ircurstances.” United States v. Bolden, 325 F.3d 471, 494 (4th

Pet. Appx. 54

action occurred to him on November 17 to delay the

proceedings is

Thirdly, and = arguably most importantly,

determinations about a party's intent largely upon an

assessment of his credibility and demeanor by the finder

of fact. As set forth more fully above, | do not find much

of Moncier’s testimony credible nor are his explanations

convincing

Moncier's primary defense in this matter is that

he was obligated by his duty to Vassar to seek

clarification" of the Court's directive by asking to speak

to his client in order to prevent harm to his chent which

would have occurred if Vassar had indicated that he

wished to continue to have Moncier to represent him in

spite of the potential conflict of interest on Moncier's

part In other words, Moncier argues that he was

attempting to prevent Vassar from waiving his

constitutional nght to conflict free counsel

This 1s a position adopted and advanced by the

Tennessee Association of Criminal Defense Lawyers

(“TACDL") as well. TACDL argues that Moncier has

So strong was Moncier’s determination not to go forward

with the sentencing hearing on November 17 that he, at one point,

‘threatened” to stand mute during the sentencing hearing of his

chent

a Although Moncier characterizes his conduct as an effort at

clarification, it cannot reasonably be characterized as much

1S TACDL was granted leave to file an amicus curiae brief in

this case. While the Court welcon.cs TACDL’s view on these issues

because of its focus and potentially special insight, the Court was

disappointed by the superficial knowledge and treatment of the

issue before the Court. First of all, the TACDL brief mistakenly

states that Moncier was charged with cmminal contempt for

requesting permission to speak with his chent. That simply is not

the case. Secondly, the TACDL motion acknowledges that its brief

1 constitutional ponsibility to

(‘ourt's qué assar atter being

interrupt the

instructed not to do order to preserve Vassar's

Sixth Amendment right to

TACDL further argue:

criminal contempt

constitutional right

effective and conflict fee couns

that true Moncier's acts a

‘then the court will set precedent that has a chilling

vy b the criminal defense bar in

must venerally

et torth ik)0)

the order of a court

matter how

ynply with with jurisdiction to

order, no strong the attorney

make the

with the order.

disagreement That the court's order

might be incorrect, tyrannical or "just plain idiotic” 1s no

contempt

"Lawyers are required to obey

In re

defense in a criminal proceeding alleging

disobedience of the order

en incorrect order; the remedy is on appeal.”

Fo 2d &13, 816 (7th Cir. 1974)

be mght. But

ger, 502 Trial

judges are human and will not always

trial counsel cannot be permitted to flout the rulings of

court regardless of how vehemently he

Comm. of Pa. v. Local Union

The United States

narrow

the trial

with the ruling

2d 498 (3d Cir. 1997).

while recognizing a

disagrees

542. 552 F

Supreme Court even

filed by the Court and that

char pe

context of the entirt

t -d soley on the notice of

conduct in the

Was Das

rACDL did not view Moncier

hearing of November 17, 2006

The TACDL bmnef was

attorneys in

signed by some of the preeminent

riminal defense rennessee, several of whom have

appeared before this Court

fair and effective administration of criminal justice and this Court

can only hope that the education and training provided by TACDL

[TACDL commendably advocates the

to its membership includes the promotion of professionalism and

matters which, quite frankly, should

and other professional associations

[his Court would also observe, based

civility in the practice of law

be addressed by bar associations

of lawyers, not by the courts

upon their conduct when appearing before this Court, that none of

the attorneys who signed this brief on behalf of TACDIL appear to

view zealous advocacy in the same terms as Moncier.

xception LO the venerati ruli¢ nas emphasized Lie

basic proposition that all orders and judgments of

urts must be on pled With promptly VManess, 419

\s for the argument that holding Moncier in

ntempt would have "a chilling effect on advocacy by

the criminal defense bar general", this Court disagrees

\s stated by the Court of Appeals for the Distmnct of

Columbia Circuit

Leal 1dvocacy ot a chent Lust

ever : lepitrmate eXcuUse for

lisobeying a clear ruling of the court

ind convicting an attorney yf

re mpt tor actual disobedience will

not cl tl criminal defens« attorns

ron zeal 1 adv MACY within tne

hounds of the law

In re Ellenbogen, 72 F. 3d 153 (D.C. Cir. 1995). Flouting

a tral judge's commands 1s the very essence of

obstruction of justic: Local Untor {?, 552 F. 2d at

909

Pnor to assuming the bench, the undersigned

regularly represented criminal defendants in both state

and federal courts "his Court understands and

subscribes to an attorney's duty in trying a case to be

zealous and fearless in representing a client's interest.

Every defendant is entitled to such advocacy on his

behalf. The direct order of a tnal judge, however, fixes

An exception which has no application to thi :

Che narrow exception found by the court in Maness dealt

with a situation where a defendant was being required to relinquish

his Fifth Amendment nght against self incrmmination, a result for

which there was no appropnate remedy on appeal

the limit Ol proper advocacy and the vigor permissible

in representing a chent's interest never includes the

flouting of a judge's rulings. See Dunn v. United State:

4

i888 F.2d 511, 513 (0th Cir. 1968): In re Osborne, 344

F2d 611 615 (9th Cir 1965) Defiance and

disobedience by yal | not pe contused with 74 aie ISTie 1

r | Teh’ ‘ i

Mons r’ insistence that hi duty tft rl chent

required his defiance of the Court 1s misplaced. If th

Court acted arbitrarily in commanding silence from

Moncier and failed to grant him reasonably opportunity

to argue his position to the detriment of his chent, the

the court of appeals would have reversed.'® And even 1f

Moncier subjectively beheved that his actions wert

necessary to preserve issues for appellate review

(which he has not claimed) such belief does not excus«

direct violation of a direct order of the tmal judge 5S

F.2d at 507: Halliman v. Untied Stat 182 F.2d 8&8

(9 Cir 1950) ert di Z| ed 4] { ~~, 52 ( Qh )

: l , i i l i I i

In short. someone must be in control of what

happens in a courtroom and maintain proper decorun

That person is the trial judge, not the lawyer for

criminal defendant nor the lawyer for the United State

Ik

Moncier does not attempt to show any irreparable harm t

Vassar which might have occurred had he complied with the

Court's command for silence. It is only the order which requir

irrevocable and permanent surrender of a constitutional right”

which cannot be enforced by the contempt power. Maness, 419 |

at 460: In re Grand Jury Proceedings, 601 F.2d 162, 169 (5th Cir

1979). Moncier’s counsel tacitly acknowledged that Moncier wa

not attempting to protect Vas r from the irrevocable surrender of

constitutional right

S Moncier had already stated h objection to the Court

procedure. But even if the Court prevent Moncier from adequately

stating his objection, it 1s well estabhshed that an appellate court

will not find a waiver of the objection under sucl rcumstance

Otherwise, the courts lose their ability to administer

justice in an orderly fashion. "|[T]he trial judge must

have the authority necessary to insure the orderly and

expeditious progress of the proceedings. His directives

in the exercise of this authority must be obeyed;

otherwise the clear result would be courtroom chaos.”

United States v. Seale, 461 F. 2d at 371 (7th Cir. 1971).

An attorney who pursues a course that he deems to be in

the best interest of his chent and deliberately disregards

a direct and explicit order of the trial judge offends the

dignity and authority of the court and obstructs justice.

Id. ‘That Moncier might have acted in subjective good

faith and without disrespect does not negate his intent.

He acted willfully and with full knowledge that the

Court would consider his actions contemptuous. He was

explicitly told so.

The Court FINDS, beyond a reasonable doubt,

that this element of the offense has been established by

the proof in this case

Having found all of the elements of the offense of

criminal contempt pursuant to 18 U.S.C. § 401(1) to

have been established beyond a reasonable doubt, I

therefore FIND Herbert S. Moncier GUILTY of criminal

contempt

Analysis under Section 1401(3)

Although the record establishes Moncier's guilt

pursuant to 18 U.S.C. § 401(1), the Court will

alternatively consider defendant's conduct under §

401(3). As set forth above, § 401(3) requires proof

beyond a_ reasonable doubt of (1) resistance or

disobedience to the court's lawful”? order or command

= The order is lawful if made by a court having subject matter

jumsdiction over the case and personal jurisdiction over the parties.

ce) i | - o ga - . + — > = a, . ©

Pet Appx >,

j ) th ct ( i

ntenti rl or willf

Disobedience to the Court's order Ol

command

(On N mbe1 i. 2006. Moncier recs ladu

equ cal ymmand for lence ind that |

irther interrupt the Court's inquiry. The re in thi

case 1s not whether the order was a proper rrect

rade Other judge night well disagree with find

mproper the order issued b the Court ne irdle

however. Moncer id the duty to obs tl Court

yrder Se Mane: 119 U.S. at 459 (stating that an

yrder by urt with jurisdiction, particularly during

trial, "must be complied with promptly and completely

intil reversed) He has not senously ntested the

lawfulne of the order?! or his disobedience of it. Thi

lement of thi offense ttablished

! ible ai bt. { n th pre yf thi ca

Intent

Lhe rucial question, here, as with Moncier

intent to obstruct justice, 1s whether he acted willfully

and intentionally in violating the Court order Ko?

may of the same reasons which led the Court to concluds

that he acted with the intent to obstruct justice. the

Court FINDS beyond a reasonable doubt that Mon r

Man t19 U it 459 \ et forth below, M

ntest either subject matter per il risdicti

\lthough some suggestion was made by M r é

during the tmnal that this Court's order was unlawfu unst

acknowledged, in response to the Court's question, that this Court

clearly had both subject matter and personal jumsdiction

stion as to the of the

is. therefore lawfulness

no qué

burt

ind thers

rat

CONCLUSION

rt

i 1 Wa | epa»re t ru tft

A 4 i

np | mt i i ter

i mel r rther led

lerat t rir tt itt rretull

1 thoughttu rt! ‘ ‘ this Court i

ie ft t I ettat ind 1 rortu { } if

oe ibi i Liat Vi I lf | "

i c . t minal ite pt in tn

nse T I (] | | ‘" ( Ss : lt

( a tn iSé clearly LaDl1I [ i

loubt that Me r disobeyed t f

julvocal i lav order of th ‘ rt 1 ti [

d so with tl ntent to « truct the administra

t and t terte! vith tl rderl f tl

irt proceedl ni yt

W nile LW ild have been tar ea er and le LIn

uming for thm Court t ignore Moncier

ntemptuous conduct, to do so would be to encourags

disobedience to lawful court orders. The ability of thi

Court indeed, all courts to compel obedience to it

rders 1s fundamental to its proper function. For the

Court to turn its head to Moncier's conduct would

likewise further erode the respect of the public for the

‘

yar, the vast majority of whom take senously "the

>

process of an orderly tnal, which are the supreme object

f the lawyer's calling.” Sacher United States, 343

a) ~ ¢ 2 ey Sidr AP Oe Dm He <

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UNITED STATES DISTRICT COURT

KASTERN DISTRICT OF TENNESSEE

GREENEVILLE

UNITED STATES OF AMERICA

HERBERT S. MONCIER

DEFRENDAN'

DOCKET NO. 2:07-CR-40

GREENEVILLE, ‘TN

AUGUST 27, 2007

9-45 AM

TRANSCRIPT OF SENTENCING

BEFORE THE HONORABLE J

RONNIE GREER UNTTED STATES

DISTRICT JUDGE

APPEARANCES

FOR THE GOVERNMENT

U.S. ATTORNEY'S OFFICE

ROBERT M. REEVES, AUSA

220 WEST DEPOT STREET

GREENEVILLE, TN 37743

FOR THE DEFENDANT

JOHN T. ROGERS, ESQ

Pet Appx. 64

ROGERS, LAUGHLIN, NUNNALLY, HOOD & CRUM

100 SOUTH MAIN STREET

GREENEVILLE, TN 37743

RALPH E. HARWELL, ESQ

RALPH E. HARWELL P.-C

800 GAY STREET

2131 PLAZA TOWER

KNOXVILLE, TN 37929

COURT REPORTER

KAREN J. BRADLEY

RPR-RMR

U.S. COURTHOUSE

220 WEST DEPOT STREET

GREENEVILLE, TN 37743

PROCEEDINGS RECORDED BY MECHANICAL

STENOGRAPHY, TRANSCRIPT PRODUCED BY

COMPUTER

PAGE 11

{ FULLY UNDERSTAND, AS YOU POINT OUT

IN YOUR SENTENCING MEMORANDUM, THAT

YOU BELIEVE YOU WERE DOING NOTHING MORE

IN THIS CASE THAN REPRESENTING THE

INTEREST OF YOUR’ CLIENT. AND I

HIGHLIGHTED WHEN I READ YOUR SENTENCING

MEMORANDUM ONE OF THE QUOTES THAT

YOU'VE USED BEFORE WITH THIS COURT, AND

IT'S A QUOTE DIRECTLY FROM A CASE THAT'S

(VE READ, WHICH SAYS, ATTORNEY HAVE A

RIGHT TO BE PERSISTENT, VOCIFEROUS AND

IMPOSING, EVEN TO THE POINT OF APPEARING

OBNOXIOUS, WHEN ACTING IN THEIR CLIENT'S

BEHALF.

Pet. Appx 65

ft DON'T KNOW WHERE THIS ATTITUDE

THAT LAWYER [IS JUSTIFIED IN DOING JUST

ANYTHING TO REPRESENT THE INTEREST OF HIS

CLIENT CAME FROM. I DON’T KNOW WHAT LAW

SCHOOL IS TEACHING THAT, BUT THAT IS NOT

NOW NOR HAS IT EVER BEEN THE ACCEPTED

AND THE PROFESSIONAL WAY OF DOING THINGS

IN A COURTROOM.

AS YOU AND | HAVE TALKED BEFORE,

THERE ARE BOUNDARIES THAT ARE SET, THERE

ARE LINES THAT ARE DRAWN BY THE PERSON

WHO IS IN CONTROL OF THE PROCEEDINGS.

THAT BEING THE JUDGE. AND WHETHER YOU

AGREE OR DISAGREE WITH WHERE THOSE LINES

HAVE BEEN SET, REPRESENTATION OF THE

INTEREST OF YOUR CLIENT DOES NOT JUSTIFY

STEPPING ACROSS THAT LINE OR KICKING SAND

IN THE FACE OF THE JUDGE BY BLATANTLY

DISOBEYING A DIRECTIVE OF THE COURT

A SIMPLE STATEMENT, JUDGE I MADE A

MISTAKE, I'M

PAGE 12

SORRY, WOULD HAVE ENDED THIS 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.

1 DON'T WANT TO IMPOSE ANY SENTENCE

IN THIS CASE. YOUR LAWYER HAS NOW

SUGGESTED TO ME THAT PROBATION IS NOT AN

OPTION, WHICH LEAVES ME BUT TWO CHOICES,

A FINE OR A TERM OF IMPRISONMENT. THE FINE

Pet Appx Ob

'M LIMITED TO IN THIS CASE MEANS NOTHING

TO YOU, SO YOUR LAWYER IS'- BASICALLY

TELLING ME TO CHOOSE BETWEEN SENDING

YOU TO PRISON OR NOTHING

WHEN I THINK ABOUT THE REASONS FOR

IMPOSING A SENTENCE IN THIS CASE, OR

NECESSITY I HAVE TO LOOK TO 3553(A). AND

SOME MIGHT ARGUE THAT THIS [IS NOT A

SERIOUS OFFENSE, A DEFIANCE OF A JUDGE'S

ORDER, THE WILLFUL DISOBEDIENCE OF A

JUDGE'S ORDER IS NOT A SERIOUS MATTER.

WELL, IT'S NOT A VIOLENT CRIME. IT DOESN'T

CARRY WITH IT THE POTENTIAL FOR INJURY OR

DEATH THAT THE PRIOR CASE DID, FOR

INSTANCE ITS NOT A DRUG TRAFFICKING

OFFENSE IT DOESN'T CARRY WITH IT THE

POTENTIAL OF HARM OR INJURY ‘TO PEOPLE IN

SOCIETY THAT THOSE KINDS OF OFFENSES

CARRY; BUT IT IS AN OFFENSE, MR.MONCIER,

THAT STRIKES AT THE VERY HEART OF OUR

SYSTEM OF JUSTICE. iv IS THE KIND OF

OFFENSE THAT ADDS TO AN CREATES IN THE

FIRST INSTANCE THE PUBLIC'S DISTRUST OF

THE LEGAL SYSTEM

IT’S NOT AN OFFENSE, IN OTHER WORDS,

THAT 1 FEEL

Pet. Appx. 67

UNITED STATES DISTRICT COUR’

KASTERN DISTRICT OF TENNESSEF

GREENEVILLE

UNTETED STATES OF AMERICA

GOVERNMENT’

MICHAEL VASSAR

DEFENDAN'

DOCKET NO. CR-2-05

GREENEVILLE, TN

NOVEMBER 17, 2006

9:05 A.M

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE J

RONNIE GREER UNITED STATES

DISTRICT JUDGE

APPEARANCES

FOR THE GOVERNMENT

U.S. ATTORNEY'S OFFICE

FOR THE DEFENDAN'I

HERBERT S. MONCIER, ESQ

COURT REPORTER:

KAREN BRADLEY

Appx ts

RPR-RMR

U.S. COURTHOUSE

220 WEST DEPOT STREE'

GREENEVILLE, TN 37743

PROCEEDINGS RECORDED BY MECHANICAL

STENOGRAPHY, TRANSCRIP’ PRODUCED BY

COMPUTER

PAGE 107

OR DO YOU WANT ME TO SEE IF I CAN FIND

SOMBEDOY WHO HAS NO CONNECTION WITH

\NY OTHER CODEFENDANT OR POTENTIAL

CODEFENDANT IN THIS CASE?

MR. MONCIER ONCE AGAIN, YOUR HONOR

THE COURT MR. MONCIER

MR. MONCIER HE MAKES

THE COURT MR. MONCIER, YOU BE QUIET’

MR. MONCIER MAY | 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, I OBJECTION WITHOUT HIM HAVING--

THE COURT: MR. MONCIER, ONE MORE WORD

AND YOU'RE GOING TO JAIL.

MR.MONCIER: MAY ISPEAK TO MY

PP \/A ’

\LED PROCE

UNITED STATS OF AMERICA, Plaintiff-Appellee

SHAW'TE DEBAR PRICE, Defendant-Appellant

No. 00-2399

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

30 Fed. Appx. 333; 2002 U.S. App. LEXIS 1065

January 23, 2002, Filed

PRIOR HISTORY OON \PPEAL

UNITED STATES DISTRIC’ COURT

WESTERN DISTRICT OF MICHIGAT

McKeague. 11-14-01

DISPOSITION:

COUNSEL: For |

Plaintiff - Appellee: Bnian K. Dela

Attorney for the Western Dh

Rapids, MI

r SHAWTE DAB

uchard EK. Zambor

Mi

JUDGES: BEFORE JONES and MOLE, Cuireu

Judges; SARGUS, District Judge.* *The Honorabl

Edmund A. Sargus, Jr., United States Distmct Judge for

the Southern District of Ohio, sitting by designation

OPINION BY: R. GUY COLE, JR

OPINION

y uit Judge

(pO) 3 +}

AFFIRM

contra!

Uectendant picaded vullty

iT) which he ipres¢ i

ind testify

ther n O ne pir. , Defendant rec

three-lev on in onsideration for

ivreement nd: iltimately testified bef

rand jury

Anticipating the need for Defendant to testify at

the trial of his brother, the Government |**3] applied to

the trial judge for an order requiring Defendant

testimony. On September 21, 1999, Judge McKeague

signed the order, pursuant to 18 U.S.C. § 6002, directing

Defendant to provide testimony at tnal

On January 6, 2000, the tnal of Quincy Price

commenced before Judge McKeague On January 7,

000, the Government called Defendant as a witness to

provide testimony against his’ brother Defendant

inswered preliminary questions, revealed to the jury

that he had testified before the grand jury, identified his

brother for the record, and acknowledges his guilty plea

ind current service in prison for cocaine distribution

However, Defendant refused to answer questions

relating to his own or Quincy Price's involvement in

illegal drug activity Defendant asserted his Fifth

\mendment privilege against self-incrimination as his

eason tor retusing to testify

On January 11, 2000, the Government recalled

Defendant to testify at the trial of Quincy Price and he

igain refused to answer any questions Upon his

ontinued refusal to answer questions, the court advised

Defendant that his Fifth Amendment privilege was

unavailable as a result of his immunity pursuant [**4]

to 18 U.S.C. § 6002. The court ordered and directed

Defendant to answer questions asked by the

Government. The court also advised Defendant that his

failure to answer questions could result in_ his

prosecution for criminal contempt Defendant retook

the stand and maintained his silence

The jury convicted Quincy Price of conspiracy to

distribute and to posses with intent to distrmbute

cocaine, cocaine base, and mariyuana on January 14,

-O00

(hereafter, the grand jury indicted Defendant for

mntempt of court. On July 31, 2000, Defendant pled

vuilty to Count 2 of the superseding indictment

pursuant to a written plea agreement. The pre-sentence

investigator determine obstruction of justice, U.S.S.G. §

2J1.2, was the guideline appropnate for application in

this cas : n 231.2(c)(1) of the Guidelin

court to U.S.S.G LL (Accessory After

the "offense involved obstructing the inve

prosecution of a crminal offense

defendant's failure to testify constituted

obstruction, the probation officer apphed

sive Defendant a base offense level of

x

adjusted downward by three {**5] points under

(Acceptance of Responsibility) for a total ba

level of 27. Accepting the probation officer

district rt entenced Deft ndant to a hundre

rir)

Defendant object to the use of

isserted that § 2J1.5 (l*'ailure to Appear |

Witness) was more closely analogous. to

charged The district court determine

obstruction of justice guideline was most

hi appeal follow

DISCUSSION

STANDARD OF REVIEW

eview the district court's legal conclusior

regarding the application of the Sentencing Guidelins

de novo; however, we accept the district court's finding

of fact unless they were clearly erroncous. United Stat

v. Gort-Didonato. 109 F.3d 318, 320 (6th Cir. 1997)

SENTENCING GUIDELINE

The district court did not err

Guidelines

The guideline for contempt, § 2J1.1, directs the

court to U.S.S.G. § 2X5.1 which instructs the court to

apply the most analogous offense guideline. The district

(WJostructi

vue lir f

ich a tinding

iting that "in « tain iffense conduct will be

ifficiently unalogou LO

r tnat ul] line to apply

The dispositiy ' whether Detendant

itended to obstruct imply remain silent Oe €

nited State Ort d 977, 981 (7th Cir. 1996)

order to hov n to obstruct ypustice the

overnment must point to specific acts the defendant

ulting in the obstruction of justice, otherwise she

defendant's conduct was designed to interfere

tration of yustice. /d

Manuel Hurtado, an immur d co

Julho Ortiz, failed to answer fully the

uestions put to him by the Government, despite order:

from the district court. The prosecution urged Hurtado

be sentenced under the obstruction of justice provision of

§ 2J1.2 because he was acting as an accessory after the

fact. Id The Seventh Circuit held that Hurtado's

refusal to testify at the trial of co-defendant Ortiz was

motivated more by an aversion to being known as a

nitch or an informer" than by a desire to aid Ortiz. /d

Che Title 18, section [**7] 3, of the United States Code

defines an accessory after the facts as a person who,

"knowing that an offense against the United States has

been committed, receives, relieves, comforts or assists

the offender in order to hinder or prevent his

apprehension, trial or punishment.” The court

concluded it was impossible for Hurtado to be guilty of

this crime, considering he was incarcerated during the

period of time in question, and found the failure to

appear guideline more appropriate. Id. at 982.

However, the court finished its analysis by stating, "This

is not to say that the failure to appear guideline must be

wn brother

that only after his brother:

arcerated, and the

61 he

district court Instead Ort

n f more hke Untited States

Brady. 168 F.3 574 (lst ( 1999) In rady. the

**9) grand jury summoned an immunized Brady to

‘

estify against two other men in a robber and murder

case. Brady refused to testify despite an order by the

district court and subsequently pleaded guilty to

criminal contempt In the course of sentencing Brady,

the judge discovered that Brady had been criminally

nvolved with the other two defendants, and that he had

ubstantial knowledge of their plans \s a result, the

ourt employed the obstruction of justice offense level

et forth in the accessory after the fact provision of the

(Guidelines. The First Circuit affirmed, holding that the

listrict court could have concluded from the facts that

Brady's refusal to testify was motivated, not by an

ibstract desire not to testify, but because he wanted to

mpede the investigation and protect his co-conspirators

ld. at 580 We find the facts in

us to the case at bar than (Jrtiz

;

Brady more clearly

support his reasoning by lkewise

ipplying U.S.S.G § 2J1.2 to contempt convictions. See

(/nited States v. Marquardo, 149 F.3d 36 (ist Cir. 1998)

(Section 2J1.2 most analogous offense for criminal

offense where defendant refused to testify [**10] before

1 grand jury); United States v. Remini, 967 F.2d 754 (2d

Cir. 1992) (Section 2J1.2 most analogous offense for

riminal contempt where immunized defendant refused

to testify at trial of mob boss; the court rejected

defendant's argument for application of § 2J1.5); United

States v. Voss, 82 F.3d 1521 (10th Cir. 1996) (Section

2J1.2 was the most analogous guideline where the basis

of contempt was defendant's violation of court order to

produce records before a grand jury; the court rejected

the defendant's argument for application of § 231.5)

CONCLUSION

Pet. Appx. 77

For the foregoing reasons, w AFFIRM. the

judgment of the district court