United States v. Myers , 302 F. App'x 201 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4823
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HEIDI JANELLE SILVER MYERS,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P.
Stamp, Jr., Senior District Judge. (5:06-cr-00055-FPS-JES-1)
Submitted: November 18, 2008 Decided: December 9, 2008
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William B. Moffitt, III, MOFFITT & BROADNAX, LTD., Alexandria,
Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Heidi Janelle Silver Myers was found guilty, after a
bench trial, of criminal contempt in violation of 18 U.S.C.A.
§ 401(3) (West Supp. 2008). The facts adduced at her trial
revealed the following. Myers was a practicing attorney and was
being investigated for possible fraudulent billing. A search
warrant executed at her law office revealed that closed client
case files, a computer server, and a backup hard drive were
missing (hereinafter “missing items”). Accordingly, a federal
grand jury issued two subpoenas duces tecum which ordered Myers
to produce the missing items, returnable to the United States
District Court for the Northern District of West Virginia on
December 5, 2006, at 9:00 a.m.
Myers failed to appear as ordered on December 5.
Rather, on December 4, 2006, she retained William Benjamin
Moffitt to represent her and he advised her not to appear before
the grand jury the next day, believing he could have the matter
continued, as neither he nor his law partner, Pleasant S.
Broadnax, III, could appear with Myers before the grand jury
that day. Because Myers failed to appear on December 5 and
because no motion for continuance or other motion was filed that
day, an arrest warrant issued for Myers at approximately 4 p.m.
There was no evidence that either subpoena was unlawful and the
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Government had a “taint or privilege team” designed to protect
the integrity of any confidential information, in light of the
fact that closed client files were sought in the subpoenas.
Myers’ previous criminal counsel, Byron Craig Manford, had
informed Myers that she could be held in contempt if she failed
to comply with the subpoenas.
As discussed in district court’s post-trial memorandum
finding Myers guilty of criminal contempt, the court made the
following legal and factual findings. Criminal contempt seeks
to vindicate the authority of a court by punishing the contemnor
and deterring future litigants from misconduct. Buffington v.
Baltimore Co., Md., 913 F.2d 113, 133 (4th Cir. 1990). The
Government proved the elements of offense because: (1) Myers was
served with lawful subpoenas to appear before the federal grand
jury; (2) Myers failed to comply with those subpoenas; and (3)
such failure to comply was willful. The court noted the first
two elements of the offense were uncontested. See United
States v. McMahon, 104 F.3d 638, 646 (4th Cir. 1997) (discussing
elements). Regarding the willfulness element, the court relied
on Licavoli v. United States, 294 F.2d 207, 209 (D.C. Cir.
1961), finding that willfulness under the statute merely
requires a deliberate intention to do the act and that advice of
counsel does not immunize that simple intention. Id. The court
noted that other opinions supported this legal conclusion,
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citing to United States v. Remini, 967 F.2d 754, 757 (2d Cir.
1992), and United States v. Golfarb, 167 F.2d 735, 735-36 (2d
Cir. 1948).
The court found no evidence that Myers had a good
faith belief that she was complying with the subpoenas; rather,
there was evidence to show she knew she was disobeying the
orders. The court distinguished this Court’s opinion in In re
Walters, 868 F.2d 665, 668 (4th Cir. 1989), from the instant
case. Regarding the Walters opinion, the district court noted:
(1) it was an appeal of a civil contempt in bankruptcy
proceeding; (2) Walters relied on United States v. Armstrong,
781 F.2d 700, 706 (9th Cir. 1986), and NLRB v. Berkley Mach.
Works & Foundry Co., 189 F.2d 904, 909 (4th Cir. 1951), for its
reasoning; (3) Armstrong and Berkley Mach. Works rejected the
argument that good faith reliance upon the advice of counsel
vitiated the willfulness element of the crime of criminal
contempt. Thus, the district court concluded that the statement
of law relied on by Myers in the Walters opinion was dictum, and
therefore failed to provide a basis for precluding the finding
of the willfulness element of the offense.
Alternatively, the district court found that, even if
the advice of counsel was an appropriate legal defense, Myers
failed to produce sufficient evidence in support of it. Rather,
the court noted, Moffitt’s testimony related only to the
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problems he and his law partner Broadnax encountered in
attending the grand jury hearing without Myers. The court
observed that, if Myers was concerned about attorney-client
privilege issues, there was no evidence presented that she had
advised Moffitt or his partner that the Government had secured a
taint or privilege team in an attempt to address this issue.
Moreover, the court found that there was insufficient
evidence that Myers’ “disobedience of the grand jury subpoenas
was even undertaken in good faith reliance on her counsel’s
advice.” (JA 378). Rather, the court found that there was
sufficient evidence that Myers knew both as a attorney
practicing criminal defense work and as a result of the advice
from her former criminal counsel, Manford, that she had options
other than simply disobeying the order of the court, i.e. to
file motions seeking relief from or the postponement of the
court’s orders. Indeed, the court noted that when Broadnax
called the district court on December 5, he was told by someone
in the judge’s chambers that the judge preferred to have a
motion to address any such issues. The court found no
evidentiary support for the fact that either Myers herself, or
counsel, lacked the ability to file a motion with the court—by
electronic filing, facsimile, or otherwise—and bring to the
court’s attention the issues now raised.
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In its memorandum opinion denying Myers’ motion for a
judgment of acquittal, the district court reiterated its above
findings regarding Myers’ good faith argument. The court found
that “any reliance by Myers on counsel’s advice not to appear
because of a scheduling conflict . . . was not made in good
faith and therefore does not negate willfulness.” (JA 389).
The court also rejected Myers’ argument that her
plausible but mistaken alternative of obtaining a continuance
negated the element of willfulness. The court found Myers’
reliance on McMahon, 104 F.3d at 642-45, for this proposition,
was misplaced. The court found that McMahon stood for the
proposition that the court order at issue must be sufficiently
clear as to provide adequate notice to the defendant. Here,
there was simply no question that the two subpoenas at issue
provided Myers with definite, clear, and specific notice of what
was required of her. Moreover, the court noted that the
testimony at trial revealed that Moffitt told Myers he would try
to get a continuance for her mandated appearance before the
grand jury—but that Moffitt never told her he had done so.
Critically, the court found that there was no evidence that
Myers “believed a continuance had been effectuated, [therefore]
her argument must fail because no evidence presented at trial
indicates anything about what Myers believed.” (JA 391).
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The probation officer made the following
recommendations in the presentence report (“PSR”). It found the
base offense level was 14, under U.S. Sentencing Guidelines
Manual (“USSG”) § 2J1.2 (2007). The probation officer used the
obstruction of justice base offense level, finding that it was
the most analogous guideline. With Myers’ criminal history
category of I, this yielded a sentencing range of 15-21 months.
The district court conducted a comprehensive
sentencing hearing. Dr. Susan J. Fiester, a psychiatrist,
testified for the defense regarding Myers’ bipolar disorder.
The court addressed Myers’ seventeen objections to the PSR, but
ultimately adopted the findings in the report. The court
grouped the objections into three categories. First, the court
found that Myers’ base offense level was properly calculated
using the obstruction of justice guideline under USSG § 2J1.2,
rather than using the failure to appear by a material witness
guideline, following the guidance of USSG § 2J1.1 (n.1). See
id. (“In certain cases, the offense conduct will be sufficiently
analogous to § 2J1.2 (Obstruction of Justice) for that guideline
to apply.”). Second, the court found that the contempt
conviction should be classified as a Class A felony, rather than
a class B misdemeanor. Third, the court found it had authority
to punish the contempt offense with both a fine and a term of
imprisonment.
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Thus, the court concluded “I do not intend to depart
from the Guidelines as determined by the probation officer,
[but] I do intend to impose a variance sentence.” (JA 527).
The court determined it would “impose a variance sentence of
three offense levels below the Guideline sentence” (JA 527),
giving Myers a total offense level of 11. (Id.). This yielded
a sentencing range of 8-14 months. The court then reviewed
possible mitigating factors, expressly considered the factors in
18 U.S.C.A. § 3553(a) (West 2006 & Supp. 2008), listened to the
arguments of counsel, and sentenced Myers to four months of
imprisonment.
Myers timely appeals, raising the following issues:
(1) whether the district court erred by finding that Myers’
reliance on counsel’s advice was not an affirmative defense to
criminal contempt; (2) whether district court erred in finding
that Myers’ good faith pursuit of a mistaken though plausible
alternative did not apply where counsel sought a continuance for
Myers’ grand jury appearance due to a variety of exigent
circumstances; (3) whether the district court erred in using the
obstruction of justice guideline; (4) whether the district
court erred in applying the 18 U.S.C.A. § 3553(a) factors by
failing to consider her post-offense conduct, her bipolar
disorder, her reliance on advice of counsel, and the disparity
between her sentence and sentences of similarly-situated
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defendants; and (5) whether the district court erred in finding
that the criminal contempt offense was a Class A felony. For the
reasons that follow, we affirm.
First, Myers argues that her good faith reliance on
counsel’s advice not to appear as ordered creates a defense to
her contempt conviction. The parties agree we review this issue
de novo. Armstrong, 781 F.2d at 706. We agree with the
district court that Myers’ reliance on counsel’s advice to fail
to appear as ordered, does not negate the willfulness element of
the contempt offense. Berkely Mach. Works, 189 F.2d at 909;
Remini, 967 F.2d at 757.
Second, Myers alleges that her good faith pursuit of a
mistaken though plausible alternative—where counsel sought a
continuance for Myers’ grand jury appearance due to a variety of
exigent circumstances—creates an affirmative defense to the
crime. As noted by the district court, however, Myers reliance
on this argument is misplaced. As our case law makes clear,
McMahon, 104 F.3d at 642-45, this would only be a defense if the
subpoenas themselves were unclear. Moreover, both of these
issues are undercut by the district court’s alternative and
detailed factual findings that it did not believe Myers had a
legitimate, good faith belief in the advice from her counsel.
See United States v. Greyhound Corp., 508 F.2d 529, 532 (7th
Cir. 1974).
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Third, Myers argues that the district court erred by
using the obstruction of justice base offense level for her
crime. As noted by the parties, however, there is no specific
base offense level for criminal contempt. Rather, the offense
of contempt is located in USSG § 2J1.1, which in turn, cites to
“§ 2X5.1 (Other Offenses).” Id. Section 2X5.1 directs that
“[i]f the offense is a felony for which no guideline expressly
has been promulgated, apply the most analogous offense
guideline.” Id. Application Note 1 to USSG 2J1.1 states that
“[i]n certain cases, the offense conduct will be sufficiently
analogous to § 2J1.2 (Obstruction of Justice) for that guideline
to apply.” USSG § 2J1.1 (n.1). Reference to USSG 2J1.2, for
obstruction of justice, reveals a base offense level of 14. We
do not find the district court erred by applying the base
offense level for obstruction, in light of the above guidelines
sections, and based on the district court’s factual findings
that Myers failed to appear in an attempt to impede the
discovery of her alleged overbilling charges. See United
States v. Lambert, 994 F.2d 1088, 1091-92 (4th Cir. 1993)
(recognizing circumstances where an offense conduct may not fit
precisely into any one Sentencing Guidelines section).
Next, Myers alleges that the district court erred in
applying the factors in 18 U.S.C.A. § 3553(a). Following the
Supreme Court’s opinion in United States v. Booker, 543 U.S. 22010
(2005), a district court must engage in a multi-step process at
sentencing. First, it must calculate the appropriate advisory
Sentencing Guidelines range. It must then consider the
resulting range in conjunction with the factors set forth in
§ 3553(a) and determine an appropriate sentence. United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). We
review a district court’s imposition of a sentence for an abuse
of discretion. Gall v. United States, 128 S. Ct. 586, 596-97
(2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). We find no abuse of discretion in Myers’ sentencing.
Finally, we find no reversible error in the district
court’s decision to adopt the probation officer’s finding that
Myers’ contempt conviction was a Class A felony. (JA 525-26).
The classification of an offense as a felony or a misdemeanor is
a question of law we review de novo. United States v. Bennett,
472 F.3d 825, 831 (11th Cir. 2006). The Supreme Court has not
characterized contempt as either a felony or misdemeanor. See
United States v. Holmes, 822 F.2d 481, 493 (5th Cir. 1987). The
district court relied on United States v. Mallory, 525 F. Supp.
2d 1316 (S.D. Fla. 2007), to conclude that Myers’ contempt
offense was a Class A felony. Myers wishes us to follow the
opinion in United States v. Carpenter, 91 F.3d 1282 (9th Cir.
1996).
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We decline to adopt the opinion of Mallory or
Carpenter, but reject Myers’ argument in this case. In
Carpenter the Ninth Circuit held that “criminal contempt should
be classified for sentencing purposes according to the
applicable Guidelines range for the most nearly analogous
offense.” Carpenter, 91 F.3d at 1285. The Court went on to
hold that the defendant was properly sentenced under the
obstruction of justice guideline. Here, the district court used
the obstruction of justice guideline and sentenced Myers
substantially below that range. We note that Myers’ four-month
sentence is within the same zero-to-six months range that she
would have received if, as Myers’ argues, her contempt violation
was considered a misdemeanor and she was sentenced using the
failure to appear by a material witness guideline under USSG
§ 2J1.5(a)(2).
Accordingly, we affirm Myers’ conviction and sentence.
We dispense with oral argument as the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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