United States v. Thomas Thompson , 925 F.3d 292 ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0107p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> No. 17-4264
v. │
│
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THOMAS G. THOMPSON, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:15-cr-00081-1—Algenon L. Marbley, District Judge.
Argued: December 6, 2018
Decided and Filed: May 29, 2019
Before: MOORE, CLAY, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Russell S. Bensing, Cleveland, Ohio, for Appellant. Alexis J. Zouhary, UNITED
STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Russell S.
Bensing, Cleveland, Ohio, for Appellant. Alexis J. Zouhary, UNITED STATES ATTORNEY’S
OFFICE, Cincinnati, Ohio, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Thomas Thompson
appeals the district court’s denial of his motion to terminate his civil-contempt sanctions in
accordance with 28 U.S.C. § 1826. Because we determine that Thompson’s sanctions do not fall
No. 17-4264 United States v. Thompson Page 2
under the eighteen-month incarceration limitation of § 1826, we AFFIRM the district court’s
order.
I. BACKGROUND
This case originated as part of consolidated civil actions filed in 2005 and 2006 against
Thompson and numerous other business-entity defendants. See Civ. R. 3 (Compl.), 2:06-CV-
00292 (S.D. Ohio)1; Williamson v. Recovery Ltd. P’ship, 731 F.3d 608, 616–17 (6th Cir. 2013)
(discussing the factual and procedural background of the civil case). The civil plaintiffs were a
group of employees and one business hired by Thompson to assist him in locating a long-sunken
ship and recovering the treasures it contained. Williamson, 731 F.3d at 616. Following the
discovery of the ship and the removal of various items, including gold, the plaintiffs filed suit to
recover some of the profits they contended they were owed. Id. During the course of that
litigation, the district court entered a preliminary injunction instructing Thompson that “he shall
not sell, encumber, transfer or diminish in value” any re-strike or commemorative gold coins he
had in his possession. Civ. R. 738 at 1–2 (Page ID #13314–15). If the coins were not in
Thompson’s possession, Thompson was instructed to “submit a declaration under oath
describing in detail the parties to whom the coins were transferred, any consideration received or
outstanding, the date of such transfer, and the names of the recipients.” Id. at 2 (Page ID
#13315). The district court subsequently entered a temporary restraining order when Thompson
transferred the coins to a third-party trust. See Civ. R. 770 at 1 (Page ID #13704). The order
prohibited the trust “from disposing of, encumbering, transferring or diminishing in value in any
way the 500 gold restrike coins.” Id.
Prior to the temporary restraining order but after Thompson failed to provide the
information detailed in the preliminary injunction, the district court issued an order requiring
Thompson to attend a hearing in August 2012 to “show cause why the Court should not hold him
in contempt.” Civ. R. 761 at 1 (Page ID #13490). The district court explained that if Thompson
did not attend the hearing, a warrant would be issued for his arrest. Id. When Thompson failed
1Because this appeal references two district-court cases, this opinion will refer to the record of the 2006
civil case as “Civ. R.” and the record of Thompson’s criminal case as “Crim. R.”
No. 17-4264 United States v. Thompson Page 3
to appear, and instead absconded to Florida, an arrest warrant was issued. See Crim. R. 3 at 2
(Crim. Compl.) (Page ID #5). A criminal complaint was filed against Thompson charging him
with failing to comply with the district court’s orders in violation of 18 U.S.C. § 401(3).2 Id. at
Page ID #3, 8. Following his arrest in January 2015, an information was filed charging
Thompson with violating § 401(3). Crim. R. 13.
In March 2015, Thompson entered into a Rule 11(c)(1)(C) plea agreement, Crim. R. 14,
which the district court later accepted, see Crim. R. 20 at 28–29 (Page ID #91–92). Pursuant to
his plea agreement, Thompson agreed to:
assist the Parties in Case No. 06-CV-0292, and any other party identified by the
Court as having an interest, in identifying and recovering assets. Defendant
agrees to testify under oath at a proceeding, amounting to a debtor’s examination
to identify and recover assets. This examination shall include, but is not limited
to, questions regarding the gold strike commemorative coins which were the
subject of previous orders in Case No. 06-CV-0292. After Defendant answers
questions in the debtor’s examination, a reasonable time will be permitted for a
process amounting to civil discovery to verify answers and trace assets. After the
debtor’s examination and a reasona[b]le period of time for discovery, if the
government is satisfied that all questions have fully [sic] answered, it shall
recommend to the Court that the civil contempt be deemed “cured.” This term
shall not bar the Court from adducing and ordering a sentence including
incarceration in this case for criminal contempt. The government acknowledges
that it is the Parties’ intention that the identification of property and assets shall
proceed as a condition of Defendant’s cooperation under the terms of this
Agreement and that the determination of whether Defendant has in fact
cooperated in this regard shall be made by this Court and only by this Court,
consistent with the terms and conditions of this Agreement. Further, the
government acknowledges that it is the Parties’ intention that any sanctions or
consequences arising from Defendants’ failure to cooperate in the identification
and recovery of assets in Case No. 06-CV-0292 be determined and imposed by
this Court as part of the instant proceeding, and only by this Court as part of the
instant proceeding . . . .
Crim. R. 14 at 2–3 (Page ID #49–50). Prior to sentencing, certain parties from the civil action,
as well as a state-appointed receiver from a connected state action, filed a motion to enforce the
218 U.S.C. § 401(3) states: “A court of the United States shall have power to punish by fine or
imprisonment, or both, at its discretion, such contempt of its authority, and none other, as . . . [d]isobedience or
resistance to its lawful writ, process, order, rule, decree, or command.”
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plea agreement against Thompson. See Crim. R. 28 at 1 (Page ID #128). On September 22,
2015, the district court ordered Thompson to “submit to a debtor’s examination, pursuant to the
terms of his plea agreement, during the week of October 19, 2015.” Crim. R. 33 at 1–2 (Page ID
#218–19).
Although Thompson initially sat for the examination, the civil parties and receiver filed a
motion to hold Thompson in civil contempt for violating the plea agreement. See Crim. R. 46 at
1–4 (Page ID #300–03). The movants contended that not only did Thompson refuse to provide
sufficient answers to their questions regarding the location of the coins, but when the
government attempted to schedule another examination, “Thompson’s counsel announced that
Thompson [wa]s invoking his Fifth Amendment privilege and w[ould] not answer any further
questions.” Id. at 4 (Page ID #303). In response to this motion, on November 16, 2015, the
district court ordered Thompson “to submit to a second debtor’s examination by the Government
and the Williamson plaintiffs” and “to comply with the terms of his plea agreement, in particular,
Section 4(a).” Crim. R. 50 at 1 (Page ID #494). The district court then quoted from paragraph
4(a) of the plea agreement, explaining that Thompson had agreed to:
assist the Parties in Case No. 06-CV-0292, and any other party identified by the
Court as having an interest, in identifying and recovering assets. Defendant
agrees to testify under oath at a proceeding, amounting to a debtor’s examination,
to identify and recover assets. This examination shall include, but is not limited
to, questions regarding the gold strike commemorative coins which were the
subject of previous orders in Case No. 06-CV-0292.
Id. at 2 (Page ID #495). The district court noted that “[i]f Thompson does not comply with the
Court’s Order to sit for the debtor’s examination, he will be ordered to show cause why he
should not be held in civil or criminal contempt for failure to comply with a Court order.” Id.
Following another delay, Crim. R. 54 (12/4/15 Gov’t Notice) (Page ID #500), Thompson
appeared at an examination on December 14, 2015, but refused to answer any questions, Crim.
R. 56 at 1–2 (Show Cause Hr’g Order) (Page ID #505–06). The district court then ordered
Thompson to appear in court the next day to “show cause as to why this Court should not hold
him in civil or criminal contempt for failure to comply with the November 16, 2015 Order.”
Crim. R. 56 at 2 (Page ID #506). The order quoted the same section of paragraph 4(a) of the
No. 17-4264 United States v. Thompson Page 5
plea agreement as the November 16, 2015 order. The show-cause hearing was scheduled for the
same day as his previously scheduled sentencing. Id.
On December 15, 2015, the district court conducted Thompson’s criminal-contempt
sentencing and civil-contempt show-cause hearing. After stating the sentencing factors under 18
U.S.C. § 3553(a), the court sentenced Thompson to two years of imprisonment for criminal
contempt. Crim. R. 67 at 32–37 (Sentencing Tr.) (Page ID #666–71). However, the district
court held Thompson’s criminal sentence in abeyance until Thompson completed any civil-
contempt sentence imposed during the show-cause hearing, which immediately followed the
criminal-contempt sentencing. Id. at 39 (Page ID #673). After the conclusion of the show-cause
hearing, the district court held Thompson in civil contempt for “not cooperating during the”
December 14, 2015 debtor’s exam, in violation of the district court’s November 16, 2015 order.
Id. at 73 (Page ID #707). The district court ordered Thompson to “be incarcerated indefinitely
until you comply with this Court’s order to provide the type of information that you had
previously agreed to provide.” Id. at 73–74 (Page ID #707–08). He was also ordered to pay the
court a fine of $1,000 per day. Id. at 75 (Page ID #709). In an accompanying written order, the
district court cited its “inherent power to enforce compliance with [its] lawful orders” as the
basis for its decision to order the civil-contempt sanctions. Crim. R. 63 at 3 (12/16/15 Contempt
Order) (Page ID #623) (quoting Shillitani v. United States, 384 U.S. 364, 370 (1966)). The
district court concluded that it would assess Thompson’s compliance every sixty days. Id. at 5
(Page ID #625). This court dismissed Thompson’s appeal of his criminal-contempt conviction
and sentence for lack of jurisdiction because the district court had expressly reserved entry of
judgment in the criminal case “pending Thompson’s purge of a civil contempt order entered in
the same case.” See United States v. Thompson, No. 15-4424 (6th Cir. Nov. 21, 2016) (order).
Upon reaching eighteen months of incarceration for civil contempt, Thompson sought to
terminate his civil-contempt sanctions. Crim. R. 111. Thompson contended that his actions fell
under the recalcitrant-witness statute, 28 U.S.C. § 1826(a), which provides:
Whenever a witness in any proceeding before or ancillary to any court or grand
jury of the United States refuses without just cause shown to comply with an
order of the court to testify or provide other information, including any book,
paper, document, record, recording or other material, the court, upon such refusal,
No. 17-4264 United States v. Thompson Page 6
or when such refusal is duly brought to its attention, may summarily order his
confinement at a suitable place until such time as the witness is willing to give
such testimony or provide such information. No period of such confinement shall
exceed the life of—
(1) the court proceeding, or
(2) the term of the grand jury, including extensions,
before which such refusal to comply with the court order occurred, but in no event
shall such confinement exceed eighteen months.
28 U.S.C. § 1826(a). Because his confinement had reached eighteen months, Thompson asserted
he was entitled to release. Crim. R. 111 at 2 (Page ID #999). On November 27, 2017, the
district court denied Thompson’s motion, concluding that “[t]he plea agreement requires Mr.
Thompson not just to provide information, but also to ‘assist the Parties’ in ‘identifying and
recovering assets’ and otherwise to comply with the terms of his plea agreement.” Crim. R. 138
at 4 (Page ID #1244). Noting that “the utility of Mr. Thompson’s assets as evidence is almost
beside the point” and that “it is the economic value of the treasure that the Court seeks,” the
district court determined that because Thompson was required both to testify and to help recover
assets, § 1826 did not apply to him. Id. at 6 (Page ID #1246). Additionally, referencing a
previous status order in April 2017, Crim. R. 108, the district court noted that the plea agreement
contemplated non-testimonial acts, such as “the signing of a limited power of attorney that
allows the government to probe the contents of the Belizean trust,” which the parties believed
contained some of the gold coins, Crim. R. 138 at 2 (Page ID #1242).
On December 6, 2017, Thompson filed this timely appeal. See Fed. R. App. P.
4(a)(1)(B). Following the government’s motion to dismiss for lack of jurisdiction, a panel of this
court expressly found that “[t]he district court’s order is effectively final, and thus appealable,”
under the collateral order doctrine. Order at 3 (6th Cir. Mar. 8, 2018).
II. STANDARD OF REVIEW
We review de novo questions of statutory interpretation, such as the scope of 28 U.S.C.
§ 1826. United States v. White, 846 F.3d 170, 174 (6th Cir.), cert. denied, 137 S. Ct. 2203
(2017). As to the district court’s denial of Thompson’s motion to lift his sanctions, we ordinarily
review a district court’s interpretation of its own order for abuse of discretion. Michigan v. City
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of Allen Park, 954 F.2d 1201, 1213 (6th Cir. 1992). However, the unique procedural posture of
Thompson’s case disrupts this standard. When the district court initially considered whether
Thompson was in contempt, it examined its two prior orders––issued on September 22, 2015 and
on November 16, 2015––and the language of Thompson’s plea agreement. See Crim. R. 63 at 2–
3 (12/16/15 Contempt Order) (Page ID #622–23). However, both the September and November
orders merely ordered Thompson to fulfill his obligations under the plea agreement and quoted
particular language from paragraph 4(a) of the agreement. See Crim. R. 33 at 1–2 (9/22/15
Order) (Page ID #218–19); Crim. R. 50 at 1–2 (11/16/15 Order) (Page ID #494–95). Similarly,
in determining whether § 1826’s eighteen-month incarceration limit applied to Thompson’s
sanctions, the district court again examined the language of the plea agreement, noting that the
court had previously determined that Thompson was in contempt based on his failure to fulfill
his duties under the plea agreement. Crim. R. 63 (12/16/15 Contempt Order).
Thus, although the district court was technically examining its December 2015 contempt
order when it denied Thompson’s motion to lift his sanctions, because the district court’s order
was predicated on its interpretation of the plea agreement, the district court was more accurately
examining the terms and conditions of that agreement. Consequently, we will examine the
district court’s denial of Thompson’s motion for what it actually was: an interpretation of
Thompson’s plea agreement. Under these circumstances, we review de novo the district court’s
construction of the plea agreement, while examining for clear error the district court’s factual
conclusions “such as whether there was an agreement and the substance of that agreement.”
United States v. Quesada, 607 F.3d 1128, 1131 (6th Cir. 2010). Finally, in interpreting plea
agreements, “this Court uses traditional principles of contract law.” United States v. Lukse, 286
F.3d 906, 909 (6th Cir. 2002). “Whether a contract term is ambiguous is a question of law for
the court to determine” under a de novo standard. Nw. Ohio Adm’rs, Inc. v. Walcher & Fox,
Inc., 270 F.3d 1018, 1023, 1025 (6th Cir. 2001) (noting that “[w]e review the district court’s
conclusions of law de novo”), cert. denied, 122 S. Ct. 1606 (2002).
III. DISCUSSION
We have rarely interpreted the scope of 28 U.S.C. § 1826. A review of the case law of
this court, as well as other Circuit courts, identifies two primary decisions addressing this statute:
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United States v. Mitchell, 556 F.2d 371 (6th Cir.), cert. denied, 98 S. Ct. 406 (1977), and
Armstrong v. Guccione, 470 F.3d 89 (2d Cir. 2006), cert. denied, 128 S. Ct. 486 (2007).
In Mitchell, two criminal defendants were ordered to submit voice exemplars in
preparation for their own trial. 556 F.2d at 381. The voice exemplars were necessary for the
government to match the criminal defendants to voice recordings taken during a sting operation.
Id. After the defendants refused to provide the exemplars, the district court held the defendants
in civil contempt and ordered them incarcerated. Id. at 381, 383. The defendants asserted that
under § 1826, their incarceration could not exceed eighteen months. Id. at 384. Noting that
§ 1826 was meant to limit the district court’s inherent authority to hold the defendants in civil
contempt, this court ultimately concluded that § 1826 was applicable and, therefore, defendants
could not be incarcerated in excess of eighteen months. Id. This court further explained that the
defendants were, indeed, “witnesses” as understood by the statute and that because the order
required the defendants to provide “information” in the form of the voice exemplars, § 1826
encompassed their conduct. Id.; see also Palmer v. United States, 530 F.2d 787, 789 & n.3 (8th
Cir. 1976) (concluding that handwriting exemplars constitute “other information” under § 1826).
In Armstrong, the Second Circuit considered whether a district court’s order requiring the
defendant to turn over various corporate assets to a court-appointed receiver fell within § 1826.
470 F.3d at 93. Noting that the Mitchell court determined that the order requiring the defendants
to submit voice exemplars constituted an order to provide other information “presumably
because the voice exemplars were sought for their informational content and had no other value,”
the Second Circuit ultimately concluded that an order requiring merely the production of assets
did not constitute an order to provide information. Id. at 109–10 (“[T]he order which Armstrong
refused to obey commands the production of gold bullion, valuable coins, and antiquities that are
sought not because of any information they might contain, but because they are objects of
monetary value that are the property of the corporation in receivership.”). Finally, the Second
Circuit explained that, although the production of a computer hard drive might fall within the
statute, where it “presumably contains records of the Princeton funds,” nonetheless the issue was
moot because Armstrong had been ordered to provide both the hard drive and the tangible assets.
Id. at 110. Given this legal background, we now examine whether, given the terms of
No. 17-4264 United States v. Thompson Page 9
Thompson’s plea agreement, the statutory limitations of § 1826 apply to Thompson’s
contemptuous conduct.
A. Order to Sit for A Debtor’s Examination
As an initial matter, and for the sake of clarity given this procedurally and factually
complicated case, we note that even if Thompson’s plea agreement required Thompson to
engage in non-testimonial conduct, if Thompson were held in contempt solely for testimonial
conduct, such as failing to participate in a debtor’s examination and answer questions truthfully,
§ 1826 would plainly apply to him. Parts of Thompson’s plea agreement explained that
Thomson was required to “testify under oath at a proceeding, amounting to a debtor’s
examination” and that the examination would “include, but [wa]s not limited to, questions
regarding the gold strike commemorative coins.” Crim. R. 14 at 2 (Page ID #49) (emphasis
added). Were Thompson to be held in contempt solely for failing to fulfill those particular
requirements, Thompson would clearly be “refus[ing] . . . to comply with an order of the court to
testify or provide other information.” 28 U.S.C. § 1826 (emphasis added). Put differently, the
only way Thompson could cure his contempt in such a scenario would be to engage in the exact
type of conduct encompassed by § 1826. None of the government’s arguments undermine this
analysis.
First, even if Thompson’s plea agreement (and the district court’s order requiring him to
comply with its terms) encompasses non-testimonial conduct in addition to “testify[ing]” or
“provid[ing] other information,” the possible scope of the agreement does not control if
Thompson’s only contemptuous conduct were refusing to testify in a debtor’s examination.
Armstrong is instructive here. As noted above, the Second Circuit in Armstrong ultimately
determined that because the defendant was in contempt for failing to follow an order requiring
him both to turn over assets (non-testimonial) and to surrender a computer hard drive containing
“other information,” it ultimately did not matter that the hard drive would conceivably fall within
§ 1826’s limitations. Armstrong, 470 F.3d at 110. However, the Second Circuit further
explained that, even though the order required Armstrong to engage in those two types of
conduct, “[i]f Armstrong were being confined solely because of his refusal to produce the
computer files, we would need to consider whether the eighteen-month cap of § 1826(a)
No. 17-4264 United States v. Thompson Page 10
applies.” Id. The Second Circuit’s comment was presumably based on the understanding that,
even if § 1826 applied to Armstrong’s failure to turn over “other information”––i.e., the
computer hard drive––because he was also required to engage in non-testimonial conduct which
did not have a corresponding incarceration limit––turning over the monetary assets––the
eighteen-month limitation did not ultimately impact the length of Armstrong’s incarceration for
civil contempt. Conversely, if Thompson were held in contempt solely for failing to testify––
conduct that falls squarely within § 1826––Thompson’s incarceration for civil contempt could
last only eighteen months.
In response, the government asserts that Thompson is not a “witness” as traditionally
understood under § 1826 because Thompson’s testimony was sought only in service of finding
items (the gold coins) which had no independent informational value. Appellee Br. at 32–34.
The government’s argument finds some support in § 1826’s limited legislative history. See
Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922–23 (1970) (explaining
that the statute was enacted “to seek the eradication of organized crime in the United States by
strengthening the legal tools in the evidence-gathering process”); S. Rep. 91-617 at 57 (1969)
(noting that the statute “represents the best efforts of the committee to codify and spell out the
powers of the courts to deal with witnesses who are unlawfully withholding information
necessary to move forward an investigation”). However, given the procedural posture of this
case, we are not prepared to say that Thompson’s testimony would be of no evidentiary value to
the 2006 civil plaintiffs, particularly since those same plaintiffs were pursuing a conversion
claim against Thompson based on the gold coins. See generally Williamson, 731 F.3d at 616;
see also In re Younger, 986 F.2d 1376, 1378 (11th Cir. 1993) (concluding that § 1826 applies to
bankruptcy proceedings and implicitly recognizing that the defendant’s “refus[al] to answer
questions in a bankruptcy case concerning the location of certain assets” which he had been
ordered to surrender fell under the eighteen-month incarceration limitation); In re Martin-
Trigona, 732 F.2d 170, 174–76 (2d Cir.), cert. denied, 105 S. Ct. 191 (1984) (determining
implicitly that an order requiring the defendant to testify regarding the status of his assets in a
bankruptcy proceeding fell under § 1826).
No. 17-4264 United States v. Thompson Page 11
Furthermore, as we noted in Mitchell, the limited legislative history of § 1826, while
instructive, is of “minimal value.” Mitchell, 556 F.2d at 384. Given the plain language of the
statute, were Thompson to be held in contempt for failing solely to sit for a debtor’s examination
and to testify about the location of his assets, § 1826 would limit his incarceration for civil
contempt to eighteen months. See Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718,
1725 (2017) (“[I]t is never our job to rewrite a constitutionally valid statutory text under the
banner of speculation about what Congress might have done had it faced a question that . . . it
never faced.”); Bridewell v. Cincinnati Reds, 155 F.3d 828, 830 (6th Cir. 1998) (“[W]e c[an]not
look to the legislative history to contravene the clear and unambiguous language of the statute.”).
The government also argues that the requirement in Thompson’s plea agreement that he
testify in a debtor’s examination “was only in service of the primary objective: ‘identifying and
recovering assets.’” Appellee Br. at 28–29. Therefore, according to the government, to the
extent Thompson’s testimony was relevant to the identification and recovery of the assets,
§ 1826 is inapplicable. But as stated, the debtor’s examination amounts to testimonial conduct
that would fall within § 1826 eighteen-month incarceration limitation. This is so without regard
to whether Thompson’s testimony would be necessary to assist the parties in recovering assets.
As explained in further detail below, however, Thompson’s contempt was not predicated
only on his failure to testify or answer questions; rather, because Thompson also failed to fulfill
the non-testimonial requirements of his plea agreement, § 1826 does not limit Thompson’s
period of incarceration.
B. Non-Testimonial Conduct
As noted above, Thompson’s plea agreement required Thompson to “testify under oath at
a proceeding, amounting to a debtor’s examination” and to answer “questions regarding the gold
strike commemorative coins.” Crim. R. 14 at 2 (Page ID #49). This is not, however, the only
conduct Thompson was required to engage in under the plain language of the plea agreement
and, significantly, was not the only basis on which the district court held Thompson in contempt.
Rather, Thompson’s plea agreement––and the district court’s November 2015 order requiring
Thompson to abide by its terms––also explained that Thompson was required to “assist” the civil
No. 17-4264 United States v. Thompson Page 12
plaintiffs “in identifying and recovering assets.” Id. at 2–3 (Page ID #49–50). Such a
requirement to assist in “recovering assets” is broad: recovering assets could, and likely would,
require Thompson both to provide information regarding the location of assets and to undertake
various non-testimonial actions, such as signing a limited power of attorney to enable the parties
to review the contents of a trust and recover any assets located within the trust. See Crim. R. 108
(4/25/17 Status Order); Crim. R. 138 (11/27/17 Order Denying Mot. to Terminate Sanctions).3
By requiring Thompson to “assist” the parties “in identifying and recovering assets,” the plea
agreement and the district court’s order explicitly left open the likelihood that Thompson’s mere
testimony would be insufficient, particularly in “recovering” Thompson’s assets.
Thompson counters that although the first sentence of paragraph 4(a) of the plea
agreement appears broad, the subsequent language indisputably limits what the parties meant by
the term “assist.” However, the unambiguous language of the plea agreement does not support
Thompson’s conclusion.4 While the agreement goes on to explain that “Defendant agrees to
testify under oath at a proceeding, amounting to a debtor’s examination, to identify and recover
assets,” there is no suggestion in the agreement that the debtor’s examination is the only means
by which Thompson is expected (and indeed, required) to “assist” the parties “in identifying and
recovering assets.” As noted above, the term “recover” clearly anticipates broader types of
actions than a debtor’s examination. Additionally, the fact that the plea agreement provides that,
“[a]fter [Thompson] answers questions in the debtor’s examination, a reasonable time will be
3Although Thompson does not address whether an order requiring him to sign a limited power of attorney
would fall within § 1826’s limitations, we conclude such an action is clearly non-testimonial and thus outside the
scope of § 1826. The act of signing a limited power of attorney is a legal tool that does not, in and of itself, express
or contain any information. And unlike voice or handwriting exemplars, there is no informational value in the actual
document containing Thompson’s signature––it cannot be compared to other, similar documents, and although it
allows the parties to gain information by searching the contents of the trust, that information is not inherent to the
document bearing Thompson’s signature. Cf. Mitchell, 556 F.2d at 384; Palmer, 530 F.2d at 789 n.3. Thus,
although § 1826 enumerates various forms that “other information” may take, including “any book, paper,
document, record, recording or other material,” the plain language of § 1826 makes clear that it is the informational
value of those documents that designates them as “other information.” 28 U.S.C. § 1826.
4Because we conclude that the terms of Thompson’s plea agreement are unambiguous, we need not
examine whether the district court committed clear error in interpreting the facts underlying the agreement. See
United States v. Debreczeny, 69 F. App’x 702, 705–06 (6th Cir. 2003) (“If the terms of [a] plea agreement are
equivocal . . . , the district court has discretion to interpret its terms. ‘The content of a plea agreement and what the
parties agreed to is a question of fact for the district court that is reviewed for clear error.’” (quoting Lukse, 286 F.3d
at 909)).
No. 17-4264 United States v. Thompson Page 13
permitted for a process amounting to civil discovery to verify answers and trace assets” and, if
the government “is satisfied that all questions have [been] fully answered, it shall recommend to
the Court that the civil contempt be deemed ‘cured,’” does not help Thompson. Similar to the
requirement that Thompson sit for a debtor’s examination, this language does not indicate that
Thompson will be required only to testify or provide “information.” Instead, it shows the
parties’ belief that, were Thompson to testify truthfully, the parties would be able successfully to
“verify [Thompson’s] answers and trace assets,” thus enabling both the identification and
recovery of those assets. This provision does not implicitly or explicitly limit what “assist” in
“recovering assets” might entail. Finally, the plea agreement notes that “the identification of
property and assets shall proceed as a condition of Defendant’s cooperation under the terms of
this Agreement.” Again, beyond reiterating Thompson’s responsibility to identify assets, a plain
reading of this statement does not limit what, precisely, Thompson will be required to do to assist
in recovering those assets. This statement merely specifies what one condition of the agreement
would be––successfully identifying assets––rather than explicitly limiting Thompson’s
responsibilities under the agreement.
Along with encompassing non-testimonial conduct, the record evidence shows that
before the eighteen-month limitation under § 1826 became applicable, Thompson was, in fact, on
notice that his contempt order included his failure to engage in non-testimonial conduct,
specifically his failure to execute a limited power of attorney. During a debtor’s examination in
January 2017, the civil parties attempted to have Thompson sign a limited power of attorney to
permit them to examine the contents of a trust Thompson owned to determine whether the trust
contained the coins. Crim. R. 94 at 1–2 (1/16/17 Joint Status Report) (Page ID #859–60); Crim.
R. 99 at 9 (1/10/17 Status Hr’g Tr.) (Page ID #923). Thompson refused. Id. Following various
orders and status conferences, in April 2017, the district court concluded that Thompson’s plea
agreement, “which requires Mr. Thompson ‘to assist the Parties in Case No. 06-CV-0292, and
any other party identified by the Court as having an interest, in identifying and recovering
assets,’ contemplates, among other things, exactly what the government seeks here: the signing
of a limited power of attorney that allows the government to probe the contents of the Belizean
trust.” Crim. R. 108 at 3 (4/25/17 Status Order) (Page ID #990); see also Crim. R. 114 at 10
(4/21/17 Status Hr’g Tr.) (Page ID #1026) (overruling Thompson’s objection to executing the
No. 17-4264 United States v. Thompson Page 14
power of attorney). In the April 25, 2017 Status Order, the district court explicitly ordered
Thompson to sign a limited power of attorney pursuant to paragraph 4(a) of his plea agreement
within twenty-eight days. Crim. R. 108 at 3 (Page ID #990). On May 23, 2017, the parties
submitted a joint status report explaining that Thompson had refused to execute the power of
attorney. Crim. R. 110 at 1 (Page ID #997). Thompson’s continued refusal was confirmed in
two later status hearings. See Crim. R. 127 at 4–5 (6/30/17 Status Hr’g Tr.) (Page ID #1159–60);
Crim. R. 130 at 4 (8/18/17 Status Hr’g Tr.) (Page ID #1195).
Based on these records, the April 25, 2017 order––issued almost two months before the
eighteen-month limitation under § 1826 became applicable––clearly put Thompson on notice
that, in order to cure his contempt, Thompson not only would have to sit for a debtor’s
examination and provide truthful testimony, but also would have to execute a limited power of
attorney to permit the parties to “probe” the contents of a Belizean trust. After all, Thompson
was not held in contempt for only refusing to submit to the debtor’s examination; rather,
Thompson was ordered to comply with all the terms of his plea agreement, including “assisting”
the parties “in identifying and recovering assets.” See Crim. R. 67 at 73 (12/15/15 Contempt
Hr’g Tr.) (Page ID #707) (“Mr. Thompson was in violation of the Court’s November 16, 2015,
order which simply required him to abide by the terms of his plea agreement, including
paragraph 4A which . . . stated that he would assist the parties in identifying and recovering the
assets . . . .”); R. 63 at 5 (12/16/15 Contempt Order) (Page ID #625) (“The Court will impose an
indefinite sentence of incarceration for civil contempt until Thompson complies with the Court’s
order to sit for the debtor’s examination and assist the Civil Litigants in identifying and
recovering assets.”). Additionally, because Thompson was on notice that he was required to
engage in non-testimonial conduct to cure his contempt before his incarceration exceeded
eighteen months, the fact that Thompson was also in contempt for failing to testify at a debtor’s
examination––conduct which would fall under § 1826’s limitation––is immaterial. See
Armstrong, 470 F.3d at 110. Section 1826 thus does not provide Thompson relief.
In summary, to the extent Thompson still refuses to comply with the district court’s order
to sign a limited power of attorney, § 1826 does not limit the length of Thompson’s
incarceration. Rather, the length Thompson’s incarceration is restricted only by the Due Process
No. 17-4264 United States v. Thompson Page 15
Clause and, if applicable, any changed circumstances which prohibit Thompson from curing his
contempt. See Shillitani, 384 U.S. at 371 (“[T]he justification for coercive imprisonment as
applied to civil contempt depends upon the ability of the contemnor to comply with the court’s
order.”); Armstrong, 470 F.3d at 110–12 (examining whether the defendant’s confinement for
civil contempt violated the Due Process Clause). Because Thompson has not presented any
argument under either theory, we affirm the district court’s order denying Thompson’s motion to
terminate his sanctions pursuant to 28 U.S.C. § 1826.
C. District Court’s Statements During Status Hearings
Although we determine that, because Thompson’s contempt currently includes his failure
to engage in non-testimonial conduct, § 1826 does not apply to him, one more issue warrants
further consideration, namely the district court’s evolving statements regarding Thompson’s
contempt. Ultimately, we determine that this issue does not undermine our conclusion as to the
applicability of § 1826.
Both in his appellate briefs and at oral argument, Thompson asserts that because the
district court has framed his contempt in terms of his failure to testify and provide information,
Thompson’s actions clearly fall within § 1826. See Appellant Br. at 19–21; Reply Br. at 3–5. It
is true that, when Thompson was initially held in contempt, the district court focused on
Thompson’s refusal to answer questions posed to him during the debtor’s exam and noted that
Thompson could cure his contempt if he provided truthful answers. See Crim. R. 67 at 69
(12/15/15 Contempt Hr’g Tr.) (Page ID #703) (explaining that Thompson’s delays are always
“on the eve of each critical proceeding where we get to the pivotal question: Where is the
treasure? Where are the assets? Where’s the loot?”); id. at 74 (Page ID #708) (“Once you
perform the act required by the Court, that is, agree to sit down and participate in the debtor’s
examination, this term of incarceration will be lifted as you will have purged yourself of the
contempt.”); id. at 78 (Page ID #712) (“[I]f you go in there and answer the questions directly and
honestly and not evasively . . . then you can purge yourself of the contempt.”). The district court
reiterated these statements in later status hearings. See Crim. R. 115 at 20 (9/9/16 Status Hr’g
Tr.) (Page ID #1070) (“We will reconvene this hearing on November the 9th to determine
whether Mr. Thompson is ready to disclose the whereabouts of the gold.”); Crim. R. 116 at 4
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(11/9/16 Status Hr’g Tr.) (Page ID #1077) (“Mr. Thompson certainly has the ability to purge
himself once he makes the decision . . . to disclose his knowledge of the whereabouts of the
gold.”). Were the district court to have explained Thompson’s contempt solely in terms of his
failure to provide answers and testify, § 1826 would apply to him. See supra Part III.A. After
all, if a district court expressly (and consistently) limits the actions which a contemnor must
undertake in order to cure his contempt, then the contemnor cannot later be faulted for failing to
cure his contempt based on other conduct of which he had no notice.
The problem for Thompson, however, is that the district court’s contempt order was not
limited only to Thompson’s failure to attend a debtor’s examination and truthfully answer
questions. Rather, as the district court explained at the contempt hearing and in the
accompanying written order, Thompson was held in contempt for failing to attend a debtor’s
examination and otherwise perform the requirements of his plea agreement. See Crim. R. 67 at
73 (12/15/15 Contempt Hr’g Tr.) (Page ID #707); R. 63 at 5 (12/16/15 Contempt Order) (Page
ID #625). And as Thompson was well aware following the district court’s April 2017 hearing
and order, such contempt included his failure to sign a limited power of attorney.
Furthermore, the district court’s statements that Thompson could cure his contempt by
sitting for a debtor’s examination and answering questions truthfully do not indicate that, in the
appropriate situation, Thompson would not also be required to engage in other, non-testimonial
conduct. Cf. Crim. R. 108 at 3 (4/25/17 Status Order) (Page ID #990) (requiring Thompson to
execute a limited power of attorney). The district court’s statements are, instead, specific to the
context of the contempt hearing and status hearings and the factual issues then before the district
court. At the time the district court made these statements, Thompson’s only contemptuous
actions revolved around his failure to answer questions in good faith during a debtor’s
examination; the concern regarding the limited power of attorney or the Belizean trust was not
yet squarely before the court. When that issue arose, the district court ordered Thompson to
follow the terms of his plea agreement by executing the limited power of attorney and,
furthermore, described Thompson’s contempt in terms of his refusal to execute the document.
No. 17-4264 United States v. Thompson Page 17
See Crim. R. 130 at 13 (8/18/17 Status Hr’g Tr.) (Page ID #1204) (“Mr. Thompson can purge his
contempt quite easily by signing the power of attorney and submitting to the debtor’s exam.”).5
Finally, paragraph 4(a) of Thompson’s plea agreement explains that “the government
acknowledges that it is the Parties’ intention that any sanctions or consequences arising from
Defendant’s failure to cooperate in the identification and recovery of assets in Case No. 06-CV-
0292 be determined and imposed by this Court as part of the instant proceeding, and only by this
Court as part of the instant proceeding.” Crim. R. 14 at 3 (Page ID #50). Thompson thus
explicitly acknowledged and agreed to a situation in which, depending on Thompson’s failure to
“cooperate in the identification and recovery of assets,” the district court would be permitted to
determine which sanctions (such as civil contempt) would be appropriate. The district court did
just that when it ordered Thompson both to testify at a debtor’s examination and to execute a
limited power of attorney in order to cure his civil contempt. Consequently, although the district
court’s directive to Thompson may have evolved based on the parties’ needs under the plea
agreement, this does not undermine our conclusion that Thompson’s sanctions fall outside the
scope of 28 U.S.C. § 1826.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s denial of Thompson’s
motion to terminate his civil-contempt sanctions.
5During the April 21, 2017 status hearing in which the district court concluded that Thompson was required
to execute a limited power of attorney under his plea agreement, the district court again described Thompson’s
contempt in terms of Thompson’s refusal to testify at the debtor’s examination. See Crim. R. 114 at 28 (Page ID
#1044) (“[H]e needs to be able to put himself in a position to purge himself of contempt by answering questions as
to the location of the gold, et cetera.”). However, context again limits the significance of the district court’s
statement. During the April 2017 hearing, the district court ordered Thompson to execute the power of attorney,
reasoning it was required under his plea agreement. Id. at 10 (Page ID #1026). Thompson had not yet refused to
comply with the district court’s order to sign the power of attorney, and any contempt Thompson faced was thus still
limited to Thompson’s refusal to answer questions during the debtor’s examination. Notably, after Thompson
refused to execute the limited power of attorney in May 2017, the district court broadened its discussions regarding
Thompson’s contempt. See Crim. R. 127 at 15 (6/30/17 Status Hr’g Tr.) (Page ID #1170) (asking whether
Thompson was prepared “to comply with the plea agreement and purge himself of the contempt”); Crim. R. 130 at
13 (8/18/17 Status Hr’g Tr.) (Page ID #1204) (noting that Thompson could purge his contempt “by signing the
power of attorney and submitting to the debtor’s exam” (emphasis added)).