United States v. Myers

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

2
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,

3
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

4
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.

5
 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).

6
 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.

7
 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

8
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).

9
 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. 220

10
(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).

11
 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

12