# Apendix — Moncier v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1656%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Apendix
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 1038

## Text

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, . ©
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

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rtt I8US.C. 93 wellas a irpument the
tal [ ihA Re { : Ip pro I te ente
| i hy f ren ! kOrTa ] I }

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1656%3A2. Public record. Not legal advice.