United States v. Herbert Moncier , 492 F. App'x 507 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0675n.06
FILED
No. 11-5196
Jun 25, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
HERBERT S. MONCIER, )
)
Defendant-Appellant. )
Before: BOGGS and COLE, Circuit Judges, and OLIVER, District Judge*
BOGGS, Circuit Judge. This is Herbert Moncier’s second appeal for his contemptuous
conduct before United States District Judge Ronnie Greer in 2007. On his last appeal, this court
reversed his conviction solely because Federal Rule of Criminal Procedure 42(a)(3) required Judge
Greer to disqualify himself from presiding over Moncier’s trial, because Moncier’s actions involved
disrespect toward Judge Greer. United States v. Moncier, 571 F.3d 593, 594 (6th Cir. 2009). But
for Judge Greer’s decision not to recuse, we would have affirmed the conviction in all respects. Id.
at 599-600. Instead, we vacated the conviction, and ordered that Moncier be retried before a
different district court judge. Id. at 600. Following remand, United States District Judge Samuel
H. Mays of the Western District of Tennessee conducted a bench trial and found Moncier guilty of
*
The Honorable Solomon Oliver, Jr., United States District Chief Judge for the Northern
District of Ohio, sitting by designation.
No. 11-5196
United States v. Moncier
criminal contempt under 18 U.S.C. § 401(1) and (3). Moncier was fined $3,000. The district court
also denied Moncier’s motion for a new trial.
On appeal, Moncier raises seven arguments: (1) his Fifth Amendment right against double
jeopardy was violated; (2) his Fifth Amendment rights to grand jury review and grand jury
indictments were violated; (3) his Sixth Amendment right to a jury trial was violated; (4) he was
denied his right to present a complete defense; (5) the evidence was insufficient to support his
conviction; (6) the district court incorrectly applied the law; and (7) the Speedy Trial Act was
violated. All of these arguments have either been rejected by this court previously, or are without
merit. Moncier’s conviction and sentence are affirmed.
I
We adopt the statement of facts from the district court’s thorough and comprehensive
findings of fact. Moncier asserts that he is being tried twice for the same offense. He claims his
earlier disciplinary proceeding—which is the subject of another case1 —constituted the earlier
criminal proceeding. However, “a disciplinary proceeding is not a criminal proceeding, nor is
attorney discipline equivalent to criminal punishment.” In re Moncier, 550 F. Supp. 2d 768, 781
(E.D. Tenn. 2008), aff’d, 329 F. App’x 636 (6th Cir. 2009);2 accord In re Caranchini, 160 F.3d 420,
1
Moncier’s other appeal, In re: Moncier, was decided on June 18, 2012. This was an appeal
from orders that limit Moncier’s ability to represent other clients or file non-pro se pleadings in the
United States District Court for the Eastern District of Tennessee. This court upheld the district
court’s orders. 2012 WL 2301647.
2
This court did not directly address Moncier’s double jeopardy on this appeal.
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No. 11-5196
United States v. Moncier
423 (8th Cir. 1998) (“Although disbarment may be considered punishment ‘in common parlance,’
. . . attorney discipline, including sanctions and disbarment, is not ‘punishment’ for purposes of the
double jeopardy clause.”); see also In re Jaffe, 585 F.3d 118, 121 (2d Cir. 2009) (“[s]ince attorney
disciplinary proceedings are primarily remedial, the double jeopardy clause of the Fifth Amendment
does not apply”).
Moncier argues that the disciplinary proceeding was “quasi-criminal,” quoting In re Ruffalo,
390 U.S. 544, 551(1968) (citing In re Gault, 387 U.S. 1, 33 (1967)). However, he ignores the fact
that this court affirmed a district court opinion in his very case holding that his disciplinary
proceeding is not a criminal proceeding. As Judge Collier explained:
According to [defendant], double jeopardy prevents an attorney from being both
convicted of a criminal offense and disciplined by a federal court in its maintenance
of the ethical and professional standards of the members of its bar. If that were true,
an attorney convicted of fraud, murder, treason, or any other criminal offense would
be protected by double jeopardy from being disbarred for that underlying conduct.
The federal court, in turn, might shield such an attorney from being criminally
convicted if it disbarred the attorney based upon the same conduct which would
support a criminal conviction.
In re Moncier, 550 F. Supp. 2d 768, 781 (E.D. Tenn. 2008), aff’d, 329 F. App’x 636 (6th Cir. 2009).
Moncier’s conviction did not violate his right against double jeopardy.
II
Moncier argues that because his retrial did not commence within seventy days of this court’s
mandate, there was a violation of the Speedy Trial Act. In reviewing the denial of a motion to
dismiss based on an alleged violation of the Speedy Trial Act, this court reviews “the district court’s
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United States v. Moncier
interpretation of the Speedy Trial Act de novo and its factual findings for clear error.” United States
v. Sobh, 571 F.3d 600, 602 (6th Cir. 2009).
The Speedy Trial Act does not apply to Moncier’s case. The Speedy Trial Act, by its very
terms, only applies to “defendant[s] charged in an information or indictment with the commission
of an offense,” 18 U.S.C. § 3161(c)(1), and the definition of “offense” in 18 U.S.C. § 3172(2)
specifically excludes Class B and C misdemeanors. 18 U.S.C. §§ 3161(c)(1), 3172(2). As the district
court noted in its May 10, 2010 order in response to Moncier’s motion asserting a violation of the
Speedy Trial Act:
This Court has stated on the record that, should the Court convict Moncier, he will
face a sentence of no more than six months’ incarceration. A crime for which a
defendant faces a sentence of six months or less is a class B misdemeanor. See 18
U.S.C. § 3581(b)(7). Therefore, because Moncier is not charged with an “offense”
as that term is defined by the Speedy Trial Act, the Act’s protections do not apply.
Class B misdemeanors are excluded from the Speedy Trial Act. United States v. Sued-Jimenez, 275
F.3d 1, 8-9 (1st Cir. 2001) (“Class B and C misdemeanors are explicitly excluded from the [Speedy
Trial] Act’s coverage. . . . [A] policy-based argument that the Speedy Trial Act should apply to [this]
case, despite the clear language of the Act, must fail . . . .”); United States v. Boyd, 214 F.3d 1052,
1057 (9th Cir. 2000) (reiterating that the Speedy Trial Act does not apply to Class B misdemeanors).
There was no violation of the Speedy Trial Act.
III
Moncier argues that he was not allowed to present a complete defense. This argument
encompasses Moncier’s challenge that he was denied his right to a jury trial.
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No. 11-5196
United States v. Moncier
On Moncier’s last appeal, this court held that the trial following remand—before a different
district court judge—“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.” Moncier, 571 F.3d at 600. That is the law
of the case. Arguments concerning his right to a jury trial have already been raised to this court and
rejected. There was no error in denying Moncier the ability to relitigate issues already foreclosed
by this court’s previous opinion.
IV
Moncier asserts that his Fifth Amendment right to a grand jury indictment was violated. The
Fifth Amendment’s requirement of presentment to and indictment by a grand jury applies only to
capital or otherwise “infamous” crimes, i.e., offenses punishable by incarceration in a penitentiary.
United States v. Pandilidis, 524 F.2d 644, 649 n.7 (6th Cir. 1975). As discussed previously, the
district court made it clear that the defendant would not receive a sentence in excess of six months
of imprisonment. Such a Class B misdemeanor is a “petty” offense, 18 U.S.C. § 19, that does not
entitle Moncier to a grand-jury indictment.
V
Moncier argues that the evidence at trial was insufficient to support his conviction. Our
review of this issue is limited to determining 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).
As this court noted previously based on the same underlying facts, albeit in a different record:
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No. 11-5196
United States v. Moncier
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 no doubt that 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.
That contention is beside the point, however, for purposes of determining whether
the record supports his conviction. It plainly did.
Moncier, 571 F.3d at 598. Based on the trial record before Judge Mays, we find that Moncier’s
conviction was supported by sufficient evidence.
VI
All of Moncier’s arguments were previously rejected by this court, or are without merit.
The conviction and sentence are AFFIRMED.
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