U.S. v. Moncier

• Citation: 571 F.3d 593
• Decision Date: 08 July 2009
• Docket Number: No. 07-6053.,07-6053.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herbert S. MONCIER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

571 F.3d 593

UNITED STATES of America, Plaintiff-Appellee, v. Herbert S. MONCIER, Defendant-Appellant.

No. 07-6053.

United States Court of Appeals, Sixth Circuit.

Argued: March 12, 2009.

Decided and Filed: July 8, 2009.

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 S. Alpert, Tennessee Association Of Criminal Defense Lawyers, Nashville, Tennessee, for Amicus Curiae.

Before: DAUGHTREY, ROGERS, and KETHLEDGE, Circuit Judges.

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 ran 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 this bench[,]" Judge Greer resorted to the gavel to restore order. Judge Greer eventually disqualified Mr. Moncier 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.

Mr. Moncier then proceeded to file 43 post-verdict motions on Vassar's behalf. They included: "Motion for Presenence [sic] Hearing Conference to Determine Disputed and Contraverted [sic] Sentencing Issues To [sic] For Which the Court May Be Disqualified From Making Factual Findings[,]" "Motion For An Order To 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 Sentencing Customs and Practices[,]" and "Third Motion for § 3553(a)(4)/Sentencing Guideline Departure/Variance: Unintended Post-Booker Consequences Pre-Mandatory Guideline Repeal of Parole Sentence Alternatives[.]" Judge Greer denied virtually all of the motions, which in numerous instances caused Mr. Moncier to file a "renewed" motion of essentially the same substance, which Judge Greer again 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 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.

B.

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 conflict 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 client[.]" 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—i.e., the one then underway—be adjourned pending the resolution of the potential conflict.

After taking a twelve-minute recess to consider the matter, Judge Greer denied Mr. Moncier's various requests. Judge Greer observed that "[t]o 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 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 I 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 jury 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 if I have to sit there and remain [mute], I will sit there and remain [mute].

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

Moncier: I 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 things that the government was wanting, that he need to know that. He [i.e., Vassar] isn't going to tell me if Harold Grooms said that because he knows I represent Harold Grooms.

(Emphasis added.)

At that point, 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....[B]ecause 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 two 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 what he had said an hour earlier, Mr. Moncier stated that "I had absolutely and I have today no reason to believe 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. Id.

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 get an acquittal, that's not the case. I've never been...